Commonwealth v. Angel Gonzalez.

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

24-P-618

COMMONWEALTH

vs.

ANGEL GONZALEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of

unarmed robbery of a person aged sixty or over in violation of

G. L. c. 265, § 19 (a); larceny over $250 from a person aged

sixty or over in violation of G. L. c. 266, § 30 (5); and

larceny from a person aged sixty-five or over in violation of

G. L. c. 266, § 25 (a). All three convictions were based on a

snatching of the victim's purse from her shopping cart. On

appeal, the defendant challenges the sufficiency of the evidence

identifying him as the thief and that the theft was accomplished

by force or intimidation. He also challenges the propriety of

the prosecutor's closing argument.
We agree that there was insufficient evidence that the

theft was accomplished by force or intimidation, and therefore,

the defendant's robbery conviction cannot stand. There was

sufficient evidence of two lesser included offenses, of which

the defendant was convicted, as well as larceny from a person in

violation of G. L. c. 266, § 25 (b). In the normal course, we

would vacate the robbery conviction and remand for entry of a

conviction of larceny from a person and resentencing.

Commonwealth v. Waterman, 98 Mass. App. Ct. 651, 654 (2020), and

cases cited. But based on the cumulative effect of the errors

in the prosecutor's closing argument, we conclude that all three

convictions must be vacated, and the case remanded for a new

trial, with trial of the unarmed robbery charge limited to the

lesser included offense of G. L. c. 266, § 25 (b).

Background. On November 12, 2021, the victim, Denise

Lindsey, age sixty-seven, was exiting a Big Y grocery store in

Springfield at approximately 10 A.M. She was pushing a shopping

cart containing her groceries and her purse, which she had

placed in the "seat part" of the cart. She paused before

exiting the store because it was raining heavily, and then felt

someone "c[o]me along side of" her. She turned and "looked

pretty much eye to eye" with the person to her side. When she

returned to looking at her cart, her pocketbook was gone, and

the man was "taking off with [her] pocketbook in hand." She

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explained the feeling of the thief's touch as a "brushing along

[her] shoulder": "you know when you're exiting . . . sometimes

people just, like, brush you . . . it was nothing . . . I just

felt, like, . . . somebody brush by me." After the theft, she

ran after the thief to get her purse back but did not catch him.

The victim described the thief as wearing a hood, being around

five feet, eight or nine inches tall, with brown eyes and brown-

black circles under his eyes.1 She described the thief's skin as

"dark."

At trial, the Commonwealth introduced Big Y surveillance

video footage, which captured the November 12 theft. The video

footage depicts a man wearing a black hooded sweatshirt with the

hood raised and a red baseball cap. The video captures him both

facing the camera and in profile. His face is visible in both

instances. The video also captures him approaching the victim

from behind, grabbing her purse, and fleeing.

Police arrested the defendant on November 29, 2021, video

recorded an interview of him and took photographs of him. The

Commonwealth introduced a redacted portion of the interview

video footage and the photographs. Detective Adames testified

1 Registry of Motor Vehicles records stated that the
defendant was five feet eleven inches tall.

3
that the defendant's appearance on the day of trial had changed

because the defendant appeared to have gained some weight.

The Commonwealth also presented evidence that the November

12, 2021, purse snatching was the first such crime in a series

of four purse snatchings in the area that occurred between

November 12 and November 18, 2021.2

At the close of the Commonwealth's case, the defendant

moved for a required finding of not guilty (presumably as to all

charges), which the judge denied. The defendant then testified

and denied that he was at the Big Y in Springfield on November

12, 2021. He described himself as "thin" at the time and

estimated he had gained between twenty and thirty pounds since

being arrested. At the close of all the evidence, the defendant

renewed his motion for a required finding of not guilty, which

the judge again denied. The defendant timely appealed.

Discussion. 1. Sufficiency of the evidence. The

defendant contends that the Commonwealth failed to prove unarmed

robbery because the evidence (1) did not show that he was the

perpetrator and (2) did not show that the theft of the purse was

2 A cooperating witness named Derek Michalczyk testified
that he committed three of the charged purse snatchings with the
defendant between November 16 and November 18, 2021, but was not
involved in and did not testify regarding the crime committed in
the present case, which occurred on November 12, 2021. The jury
acquitted the defendant of the three crimes committed between
November 16 and November 18.

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accomplished by force or intimidation. In both instances, 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" (citation omitted). Commonwealth v. Latimore,

378 Mass. 671, 677 (1979).

a. Sufficiency of the evidence that the defendant was the

purse snatcher. The jury were able to observe the Big Y

surveillance video footage of the crime and compare it to the

video recording of the defendant's interrogation, his booking

photographs taken seventeen days after the crime, and his

appearance in the courtroom over the course of the trial. "The

jury could assess for themselves any points of similarity . . .

between the various images in evidence and the person present in

the court room." Commonwealth v. Phillips, 495 Mass. 491, 495

(2025). See also Commonwealth v. Belnavis, 104 Mass. App. Ct.

798, 802 (2024) ("Where there is no testifying percipient

witness and the defendant is to be identified from a video

recording or photograph, that is usually a task for the jury,

which is qualified to compare the video recording or photograph

to the defendant sitting in court"). Contrary to the

defendant's argument, the defendant appears to have a similar

skin tone and facial hair to the thief. Though the defendant

makes a plausible argument that the profile of his nose is

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different than the thief's as depicted in the surveillance video

footage, a rational trier of fact could have rejected this

claim.3 Indeed, in his interview, the defendant admitted that

the thief looked like him. Accordingly, viewing the evidence in

the light most favorable to the Commonwealth, a rational trier

of fact could have found that the defendant matched the

appearance of the person who committed the Big Y theft.

b. Sufficiency of the evidence that the thief used force

or intimidation. To find the defendant guilty of unarmed

robbery of a person sixty years or older, the jury had to find

beyond a reasonable doubt that the theft of the purse was

accomplished "by force and violence, or by assault and putting

[the victim] in fear." G. L. c. 265, § 19 (a).4

The Supreme Judicial Court has addressed this aspect of the

robbery statute in the context of purse snatchings:

"The exertion of force, actual or constructive,
remains the principal distinguishing characteristic of
the offence. Because the requirement is stated in the
disjunctive, if there is actual force, there need be
no fear (constructive force), and vice versa. Whether
actual or constructive force is employed, the degree
of force is immaterial so long as it is sufficient to
obtain the victim's property against [her] will.
Similarly, in every case there must be a causal

3 Defense counsel explicitly drew the jury's attention to
this point in her closing argument, so the jury had the
opportunity to consider and reject that point.

4 The same is true for unarmed robbery not aggravated by the
victim's age, G. L. c. 265, § 19 (b).

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connection between the defendant's use of violence or
intimidation and his acquisition of the victim's
property.

"In a snatching or sudden taking, so long as the
victim is aware of the application of force which
relieves [her] of [her] property, the crime is, at
least to some degree, against . . . [the victim's]
will. Clearly, more is involved than in a mere
stealthy taking where the victim has no present
realization of the theft." (Emphasis added;
quotations, citations, and footnote omitted.)

Commonwealth v. Jones, 362 Mass. 83, 87, 89 (1972). Moreover,

"[t]o prove that a robbery was committed 'by assault and putting

in fear,' the Commonwealth must establish actual fear or

apprehension on the part of the victim." Commonwealth v.

Garrett, 473 Mass. 257, 267 (2015), quoting G. L. c. 265,

§ 19 (b).

On this record, no reasonable juror could conclude beyond a

reasonable doubt that the thief used actual or constructive

force to steal the purse. At most, as the surveillance video

footage corroborates, he may have "brushed" the victim. But as

she stated, "it was nothing." To the extent that this brushing

conveyed an awareness of the "application of force," it did not

convey a "present realization of the theft." Jones, 362 Mass.

at 89. The victim testified that she did not "notice anything"

until she looked back at her cart and realized her pocketbook

was gone. There was no evidence that the victim experienced any

fear, anxiety or apprehension either leading up to or during the

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theft. Therefore, no reasonable juror could have concluded that

she was "aware of the application of force which relieve[d]

[her] of [her] property," id., or that she experienced "actual

fear or apprehension," Garrett, 473 Mass. at 267, at least prior

to the point that the thief had stolen her purse. Such a

showing was necessary for the Commonwealth to sustain its burden

of proof. See Commonwealth v. Joyner, 467 Mass. 176, 187

(2014); Commonwealth v. Zangari, 42 Mass. App. Ct. 931, 932-933

(1997). Accordingly, we must vacate the robbery conviction, set

aside the verdict, and order entry of a verdict for the

defendant on the portion of the charge alleging "force and

violence" or "assault and putting [the victim] in fear." See

G. L. c. 265, § 19 (a), (b). If the Commonwealth decides to

retry the defendant, it may only be on the remaining portion of

the charge, alleging larceny from a person.

2. The prosecutor's closing argument. On appeal, the

defendant argues that the prosecutor committed multiple errors

in her closing argument, which deprived him of due process of

law and a fair trial. We briefly recount those statements here.

First, the prosecutor argued: "[T]here is zero evidence

before you that these crimes continued after the defendant's

arrest. There is simply no evidence of that." In fact, there

was no evidence one way or the other as to whether purse

snatchings continued after the defendant's arrest. On appeal,

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the Commonwealth concedes that the prosecutor misstated the

evidence.

Second, in response to the defendant's assertion that there

was no corroboration that the thief depicted in the surveillance

video footage was the defendant, the prosecutor argued: "All of

the accounts of the robberies, all of them were corroborated by

Derek Michalczyk. All of them." In fact, Michalczyk testified

that the defendant helped perpetrate three other purse

snatchings, but did not testify about the defendant's

involvement in the Big Y purse snatching. Again, the

Commonwealth concedes that the prosecutor misstated the

evidence.

Third, following the judge's ruling that the prosecutor

could not elicit testimony comparing the defendant's height to

her own,5 the prosecutor asserted in closing argument by hand

gesture that the defendant was "[j]ust a bit taller than [her]."6

5 In support of this ruling, the judge noted that the
prosecutor's height was not in evidence.

6 The Commonwealth asserts that notwithstanding the judge's
ruling, this was fair comment based on the videotaped deposition
testimony of another victim of a different crime, that the thief
who stole her pocketbook was "Maybe [the prosecutor's] height or
a bit taller."

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The defendant objected to each of these arguments and asked

for specific curative instructions. The judge denied that

request.7

We agree that the prosecutor's arguments were not supported

by the evidence and therefore were error. See Commonwealth v.

Rutherford, 476 Mass. 639, 643 (2017) ("closing arguments must

be limited to facts in evidence and the fair inferences that may

be drawn from those facts"). See also Commonwealth v. Niemic,

483 Mass. 571, 592 (2019) ("a prosecutor may not argue facts not

in evidence or misstate the evidence"). The question then is

whether the errors were prejudicial.

"Where, as here, the prosecutor argued facts in
closing argument that find no support in the evidence
at trial and where that error is preserved by a timely
objection, the error is nonprejudicial only if we are
sure that the error did not influence the jury, or had
but very slight effect" (quotation and citation
omitted).

Commonwealth v. Tate, 486 Mass. 663, 669 (2021). In addition to

whether the defendant timely objected, the other factors that

determine whether an error in closing argument requires reversal

7 The defendant also challenges the following statement:
"although it's not an element of any of the charges, [the
defendant took the victims' purses from them] without remorse
and without concern for these women." The defendant did not
object to this statement at trial. Because the judge gave an
effective curative instruction that the jury must not to be
swayed by appeals to sympathy or emotion, this statement did not
prejudice the defendant.

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are: "[1] whether the error was limited to collateral issues or

went to the heart of the case; [2] what specific or general

instructions the judge gave the jury which may have mitigated

the mistake; and [3] whether the error, in the circumstances,

possibly made a difference in the jury's conclusions" (citation

omitted). Id. "[T]he entire record, including the balance of

the prosecutor's argument, [is] relevant in determining whether

the error was prejudicial to the point of requiring a reversal

of the conviction" (citation omitted). Id. See Commonwealth v.

Silva-Santiago, 453 Mass. 782, 807 (2009) (errors in

prosecutor's closing must be "viewed collectively").

Applying the factors relevant to the prejudice analysis, we

first note that all of the errors "went to the heart of the

case" (citation omitted). Tate, 486 Mass. at 669.

Misstatements of the evidence that "[go] to the heart of the

case" are particularly prejudicial. Silva-Santiago, 453 Mass.

at 808. The primary issue was the defendant's identity as the

thief. The defendant explicitly denied that he was present at

the scene on the date of the crime. All the prosecutor's

misstatements went against that claim and supported her argument

that the defendant was the thief.

The prosecutor's first misstatement -- "there is zero

evidence before you that these crimes continued after the

defendant's arrest" -- was especially problematic because it

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implicated burden-shifting. The defendant had no burden to

present any evidence at all, including evidence that purse

snatchings continued in the area after the defendant's arrest.

See Mass. G. Evid. § 1113(b)(3)(E) (2025). See also

Commonwealth v. Amirault, 404 Mass. 221, 240 (1989) ("A

prosecutor . . . cannot make statements that shift the burden of

proof from the Commonwealth to the defendant"); Commonwealth v.

Matos, 95 Mass. App. Ct. 343, 352-353 (2019) ("The defendant had

no burden to disprove the Commonwealth's evidence . . .; the

burden always remains with the Commonwealth, whether or not the

defendant disputes the Commonwealth's evidence"). But the jury

may have improperly relied on the prosecutor's assertion -- to

which the defense could not respond -- as affirmative evidence

that the defendant committed the crime.

Additionally, the magnitude of the error in the

prosecutor's third misstatement of fact, indicating with a hand

gesture that the defendant was "[j]ust a bit taller than me,"

was exacerbated by the fact that the judge had explicitly

precluded such a comparison. See Commonwealth v. Burke, 373

Mass. 569, 575 (1977) ("No attorney shall refer in closing

argument to evidence which has been excluded. . . . Failure to

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abide by this standard constitutes ground for reversal. . . .

The correctness of the judge's ruling is irrelevant").8

Applying the second factor in the prejudice analysis, we

note that the judge refused the defendant's explicit request for

specific instructions to address these misstatements of fact.

The judge did not, for example, clarify that a lack of evidence

about whether similar crimes continued after the defendant's

arrest is not the same as affirmative evidence that such crimes

stopped. Nor did the judge warn the jury to be "careful in

comparing their memory of [Michalczyk]'s testimony with the

attorneys' characterization of it." Silva-Santiago, 453 Mass.

at 808. The judge did give a general instruction that "it's how

you saw the evidence and how you find the evidence, not how

either attorney suggested to you you should find the evidence"

and, later, that "[e]vidence is not the opening or closing

statements of counsel." But we doubt that such general

instructions were effective in addressing the prosecutor's

erroneous assertions. See Commonwealth v. Santiago, 425 Mass.

8 We acknowledge that there were grounds for some confusion
about this point. As explained in note 5, supra, prior to the
judge's ruling, the prosecutor had introduced a videotaped
deposition of another victim, who compared the thief's height to
the prosecutor's height without objection. We note, however,
that the judge's ruling should have alerted the prosecutor not
to compare the thief's height to her own height in her closing
argument.

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491, 501 (1997) (reversal warranted where general instruction

that opening statements and closing arguments of counsel are not

evidence was not adequate to cure prosecutor's errors).

The judge also instructed the jury that the Commonwealth

had the burden of proof and that the defendant "did not have to

explain anything." But this instruction did not focus on the

danger that the prosecutor's reliance on a lack of evidence

created -- that the jury might conflate absence of evidence with

evidence of absence (i.e. affirmative evidence that the purse

snatchings stopped after the defendant's arrest).

Third, we consider "whether the error, in the

circumstances, possibly made a difference in the jury's

conclusions" (citation omitted). Tate, 486 Mass. at 669. The

Big Y surveillance videos captured the thief's face and profile.

The jury were in the best position to compare those images to

the images of the defendant and determine whether the

defendant's appearance matched the thief's. Phillips, 495 Mass.

at 495. Also, while the prosecutor erroneously claimed that

Derek Michalczyk corroborated the defendant's involvement in

every purse snatching, the jury acquitted the defendant of every

crime Michalczyk claimed he did commit. This supports an

inference that Michalczyk's accusatory testimony -- and the

prosecutor's suggestion it corroborated the defendant's

involvement -- was immaterial to the jury.

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But the Commonwealth offered very little corroboration for

the identification evidence relating to the November 12, 2021,

theft. No eyewitnesses to the crime identified the defendant as

the purse snatcher in an out-of-court identification procedure

or in court. No one who knew him identified him in the

surveillance video footage.9

Furthermore, the surveillance video evidence indicated that

the thief, who appeared to be wearing "chunky boots," was

"barely taller" than the victim. The victim testified that they

looked at each other, "eye to eye," and estimated that the thief

was "just a little taller than [her], which is, like, probably

5'9", 5'8." Registry of Motor Vehicles records stated that the

defendant was 5'11". Also, as the defense argued to the jury,

the profile of the thief's nose in the surveillance video

footage appears different from the profile of his nose in his

side-angle booking photograph.

In considering "whether the error[s], in the circumstances,

possibly made a difference in the jury's conclusions" (citation

9 Moreover, there was no evidence that the property in the
purse was found in the defendant's possession. There was no
evidence that he used the victim's stolen debit card, even
though she reported it was used the day after it was stolen.
There was no deoxyribonucleic acid (DNA) or fingerprint evidence
linking the defendant to the crime, even though the police had
identified the car the thief had fled in. There was no cellular
telephone location evidence placing the defendant near the scene
of the crime, even though the Commonwealth knew that he had a
cell phone.

15
omitted; emphasis added), Tate, 486 Mass. at 669, we must

consider all the errors in the prosecutor's closing

"collectively." Silva-Santiago, 453 Mass. at 807. Considering

the errors collectively, we conclude that they "possibly made a

difference in the jury's conclusions" given the judge's failure

to provide specific curative instructions on each statement, the

lack of corroboration for the identification evidence, and the

questionable reliability of that identification evidence. See

Niemic, 483 Mass. at 595.

Conclusion. On the charge of unarmed robbery, the judgment

is vacated. So much of the verdict on that charge as finds the

defendant guilty of the lesser included offense of larceny from

a person is set aside, and the defendant may be retried on that

portion of the charge; on the remaining portion of the charge

("force and violence" or "assault and putting [the victim] in

fear"), a verdict shall enter for the defendant. On the charges

of larceny over $250 from a person aged sixty or over and

larceny from a person aged sixty-five or over, the judgments are

16
vacated, the verdicts are set aside, and the defendant may be

retried.

So ordered.

By the Court (Neyman, Shin &
Wood, JJ.10),

Clerk

Entered: May 1, 2025.

10 The panelists are listed in order of seniority.

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