Commonwealth v. Jorge German.

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-1428

COMMONWEALTH

vs.

JORGE GERMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial in the Boston Municipal Court, the

defendant was convicted of carrying a firearm without a license

and knowingly possessing a firearm with a defaced serial number.

On appeal, the defendant argues that his pretrial motion to

suppress was wrongly denied and that at trial, the only evidence

that he was a minor at the time of the offense and thus

ineligible for firearms licensure was improperly admitted. We

affirm.

1. Motion to suppress. a. Facts. At the evidentiary

hearing on the defendant's motion, the Commonwealth introduced

the testimony of Boston police officers Luis Capriles,

Christopher Hegerich, and Ryan Fullam, as well as video
recordings taken from body cameras worn by two of those

officers.1 We briefly summarize the motion judge's findings of

fact, supplemented by additional facts apparent from our review

of the video recordings, see Commonwealth v. Yusuf, 488 Mass.

379, 380-381 (2021), and by other uncontroverted facts we infer

that the judge credited. See Commonwealth v. Jones-Pannell, 472

Mass. 429, 431 (2015).

At approximately 10:47 P.M. on June 11, 2022, Capriles,

Hegerich, and Fullam -- all members of the Boston police

department's "Youth Violence Strike Force" -- were patrolling

together in an unmarked police vehicle when they saw a Jeep

speeding on Columbia Road. When they stopped the Jeep, the

officers saw three occupants, none of whom were wearing

seatbelts. Capriles approached the defendant, who was sitting

in the front passenger seat, while Fullam went up to the

driver's side and spoke with the driver and the rear seat

passenger. The officers noticed that despite the hot weather at

the time, the defendant was wearing an unzipped winter coat.

1 All three officers were wearing body cameras during their
interactions with the Jeep's occupants. However, Capriles's
camera was not activated until the time of the exit order, and
Hegerich's camera did not record any part of the interaction.

2
The police demanded that the occupants of the Jeep produce

identification.2 The defendant provided his identification to

Capriles, apparently showing Capriles a photograph of a document

on his cell phone. Capriles photographed the image on the

defendant's cell phone, then gave the documentation of the

defendant's identification to Hegerich.3 Hegerich took the

identification information for the Jeep's occupants back to the

police car, where he looked it up in a database, the criminal

justice information system (CJIS). Capriles, who had training

in identifying armed gunmen, noticed a bulge in the defendant's

"waistband/crotch" area that did not appear to be part of the

defendant's body and saw the defendant make "a pushing motion

downward towards his waistband area."4 Based on these

observations, Capriles believed that the defendant was

2 Throughout the interaction, Capriles and the defendant
conversed in Spanish.

3 Capriles testified that after obtaining the defendant's
identification, he "went to [Hegerich], who was at the cruiser,
relayed the information to him," then returned to the Jeep. The
video footage was consistent with this account.

4 The judge, "mindful that the camera footage only shows the
defendant's waist and groin area for a matter of seconds during
an encounter that spanned several minutes," noted that the body
camera footage was "not conclusive on the issue of whether there
was a bulge in the defendant's waistband or groin." In any
event, based on the officers' testimony, the judge found that
"[a]ll three officers saw [the pushing] movement, although they
each described it somewhat differently."

3
concealing something in his clothing, and according to

Capriles's testimony, Capriles subsequently signaled nonverbally

to Hegerich that "there might be a firearm."5

The motion judge found that "Capriles remained with the

defendant while Hegerich checked the occupants'

identifications." At least once during the interaction,

Capriles walked to the cruiser.6 Fullam remained at the driver's

side window "throughout the stop" and continued to speak in a

"cordial" manner with the Jeep's driver. "Fullam's interaction

with the defendant was minimal due to [the defendant's]

inability to speak English," but Fullam continuously shifted his

attention and the beam of his flashlight around to all three

occupants of the Jeep. The motion judge found that during the

stop, the defendant seemed no more nervous than an average

person stopped by the police would be.

5 Although Hegerich may have been "at the cruiser" when
Capriles made the gesture, there is no evidence that he was
unable to see Capriles's gesture.

6 To the extent that the judge found that Capriles remained
continuously at the passenger's side window beside where the
defendant was sitting, his finding is clearly erroneous. It is
apparent from the video recording that Capriles left the
passenger's side window after taking a photograph of the
defendant's cell phone screen. When Capriles reappears on the
video recording, he is approaching the Jeep from behind, coming
from the area in which the cruiser is stopped.

4
At some point before Hegerich gave him the information

about the occupants' identification check, Capriles noticed that

the defendant was wearing a global positioning system monitor

(GPS monitor) on an ankle bracelet. When asked about the GPS

monitor, the defendant told Capriles that it was due to an open

case involving a stolen moped. However, after he ran the CJIS

query, Hegerich told Capriles that the defendant had a pending

gun case. At that point, Capriles ordered the defendant to get

out of the car. When the defendant refused to do so despite

Capriles's repeated commands, the police forcibly removed the

defendant from the Jeep. Hegerich frisked the defendant's groin

area and felt a firearm, which the police recovered from inside

the defendant's clothing.

In a written memorandum of decision, the motion judge ruled

that the exit order and patfrisk of the defendant were proper

because at the time the police gave the order and performed the

frisk, they reasonably suspected that the defendant was armed

and dangerous.

b. Discussion. We begin by recognizing that generally,

"in reviewing a ruling on a motion to suppress, we accept the

judge's subsidiary findings of fact absent clear error but

conduct an independent review of [the judge's] ultimate findings

and conclusions of law." Commonwealth v. Tremblay, 480 Mass.

645, 652 (2018), quoting Commonwealth v. Clarke, 461 Mass. 336,

5
340 (2012). See Commonwealth v. Karen K., 491 Mass. 165, 169

(2023) (defining clear error). We defer to the motion judge's

determination of the weight and credibility of the evidence

because making such assessments "is the function and

responsibility of the judge who saw and heard the witnesses, and

not of this court." Commonwealth v. Neves, 474 Mass. 355, 360

(2016), quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980).

"Where a judge's findings are based on recorded evidence,
we are in as good a position as the motion judge to
evaluate that evidence. However, where, as here, the judge
considered the recorded evidence in light of oral testimony
at the motion to suppress hearing and made credibility
determinations therefrom, we adhere to the normal standard
of review."

Commonwealth v. Hoose, 467 Mass. 395, 399-400 (2014).

On appeal, the defendant does not argue that the facts the

judge found failed to support the judge's conclusion. Instead,

he contends that certain witness testimony was inconsistent and

"confusing," that some of it conflicted with the video

recordings of the stop, and that as a result, the evidence of

when and if the police reasonably suspected that the defendant

was concealing a firearm was "so internally inconsistent or

implausible on its face that a reasonable fact-finder would not

credit it." United States v. Henderson, 463 F.3d 27, 32 (1st

Cir. 2006), quoting Anderson v. Bessemer City, N.C., 470 U.S.

564, 575 (1985). On that basis, the defendant argues that the

motion judge "committed clear error in believing" the key

6
evidence about Capriles's observations of a suspicious bulge in

the defendant's clothing and the defendant's efforts to conceal

it. Mindful of our deferential standard of review, we decline

to disturb the motion judge's order denying the defendant's

motion.

We acknowledge the defendant's well-articulated argument

that where the police obtain evidence through potentially

illegal means, they may be incentivized to create a false story

to avoid suppression of the evidence under the exclusionary

rule. See, e.g., Commonwealth v. Fredericq, 482 Mass. 70, 78

(2019) (exclusionary rule prohibits "the use of evidence derived

from an unconstitutional search or seizure"). However, we

decline to apply a different level of scrutiny where the Supreme

Judicial Court has not done so. See Commonwealth v. Sweeting-

Bailey, 488 Mass. 741, 754-755 (2021), cert. denied, 143 S. Ct.

135 (2022). Whether Capriles's testimony was "plausible" was

for the motion judge to decide. See Neves, 474 Mass. at 360;

Hoose, 467 Mass. at 399-400.

At the motion hearing, the defendant's counsel argued that

the police officers' accounts were not believable; from the

judge's denial of the defendant's motion, we infer that the

judge considered and rejected the defendant's perspective. We

are not persuaded that the judge committed clear error in doing

so.

7
The defendant's interpretation of Capriles's actions --

"le[aving] his partner alone and outnumbered with a person he

believed was armed and dangerous, without so much as telling him

he believed there was a gun in the car" -- could lead to the

conclusion that Capriles did not believe the defendant was

dangerous, but the totality of the evidence at the hearing does

not require that conclusion. The officers' testimony and the

video evidence suggest that Capriles gestured to Hegerich to

alert him to Capriles's concern that the defendant was armed,

that the other officers were visibly in the general area,7 that

Fullam was attentive to all three occupants of the Jeep, and

that Fullam was on the driver's side of the Jeep with the driver

and back seat passenger between himself and the defendant.

Moreover, the police were not literally "outnumbered" on the

scene at any relevant time -- in addition to the three officers

present from the inception of the stop, it is apparent that

there were other officers immediately available to help on

demand.8 Even assuming that Capriles's actions -- namely leaving

7 The video depicts a vehicle with flashing blue and white
lights directly behind the stopped Jeep, no more than one or two
car lengths away, and shows Hegerich walking around the Jeep and
between the other vehicle and the Jeep when Capriles is out of
view.

8 Fullam's body camera recording shows him using a radio to
call for additional assistance and then within one minute,
reporting that additional officers were arriving.

8
the side of the Jeep after becoming suspicious that the

defendant was armed -- require a finding that Capriles failed to

act in accordance with his training or that his actions were

ill-advised, we are not persuaded that the motion judge could

not reasonably have credited his testimony about having seen the

bulge and the defendant's apparent attempts to conceal it.

Nor are we convinced that because the officers'

descriptions of the bulge in the defendant's clothing and the

defendant's efforts to manipulate it differed in some ways, the

motion judge erred in finding that Capriles saw a bulge he

suspected was a concealed object. The judge found that "[a]ll

three officers saw" the defendant's "pushing motion" to conceal

the object, "although they each described it somewhat

differently." It was for the judge to determine what the facts

were based on his assessment of the weight and credibility of

each witness's testimony. See Moon, 380 Mass. at 756. See also

Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990);

Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517–518 (1984)

("The clear error standard is a very limited form of review,"

such that "[w]here there has been conflicting testimony as to a

particular event or series of events, a judge's resolution of

such conflicting testimony invariably will be accepted"). Even

if, as the defendant contends, the video footage taken in a

vacuum could be interpreted to support a different result than

9
the one the judge reached, the judge had oral witness testimony

to provide additional context for his interpretation of the

recording. We are bound to give deference to the judge's

interpretation. See Hoose, 467 Mass. at 399-400. Thus, we

discern no clear error in the motion judge's decision to credit

Capriles's testimony,9 and we decline to disturb the order

denying the defendant's motion to suppress evidence of the

firearm.

2. Evidence of defendant's age. Absence of licensure is

an essential element of unlawful possession of a firearm. See

G. L. c. 269, § 10 (a), as amended through St. 2014, c. 284,

§ 91;10 Commonwealth v. Guardado, 491 Mass. 666, 690, 692, S.C.,

493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024).11

Thus, at the defendant's trial, the Commonwealth was required to

prove beyond a reasonable doubt that the defendant lacked a

valid firearm license. See Guardado, supra at 690. The

Commonwealth moved in limine to admit evidence of the

defendant's birthdate to prove that he was not old enough to

9 Because we find no clear error, we need not consider
whether exclusion of that evidence would require us to vacate
the motion judge's order.

10We cite to the versions of the relevant firearms statutes
in effect at the time of the defendant's arrest in 2022.

11This case was tried in March 2024, after the release of
the decision in Guardado.

10
qualify for a license to carry firearms. See G. L. c. 140,

§ 131 (d), as amended through St. 2018, c. 123, §§ 11, 12. The

trial judge allowed that motion, and at the defendant's bench

trial, the Commonwealth relied exclusively on Capriles's

testimony to prove the defendant's date of birth.12 Over the

defendant's objection, Capriles testified that after the police

stopped the Jeep for speeding and noticed that none of the

occupants were wearing seatbelts, the officers asked all three

occupants for identification and the defendant "provide[d]

[them] with a name and date of birth." Using that information,

Capriles determined that the defendant was under twenty-one

years of age. Capriles and Hegerich testified that they used

CJIS to confirm the defendant's identity using the name and date

of birth the defendant provided to Capriles. Insofar as the

defendant objected to evidence of his date of birth for the

reasons he now argues, see Commonwealth v. Grady, 474 Mass. 715,

12To the extent that the defendant suggests that "a
certified copy of a government record" was required to establish
the defendant's date of birth, he provides no case to support
his contention, and we are aware of no such precedent. Cf.
Commonwealth v. Roe, 90 Mass. App. Ct. 801, 808-809 (2016)
(police officer's testimony that victim was born in particular
month and year was sufficient to establish victim's age at grand
jury presentment on indictment for indecent assault and battery
on person under fourteen years old). We pause to note, however,
that had the Commonwealth obtained and offered certified records
of the defendant's date of birth, much of the defendant's
appellate challenge to his conviction might have been avoided.

11
719 (2016), we review the judge's ruling on the admissibility of

the challenged evidence for an abuse of discretion and, if the

judge erred, to determine whether the error was prejudicial.

See, e.g., Commonwealth v. McDonagh, 480 Mass. 131, 140 (2018).

a. Hearsay challenge. We discern no abuse of discretion

in the judge's determination that Capriles's testimony about the

birthdate included on the identification the defendant provided

to the police was not hearsay. It is undisputed that when the

police asked for proof of his name and date of birth, the

defendant showed Capriles an image of an identifying document on

his cell phone. The judge could reasonably have concluded from

that nonverbal conduct that the defendant intended to assert

that the information he showed to the police included his

correct name and birthdate. See Commonwealth v. Koney, 421 Mass.

295, 302-303 (1995) (identification card handed to police

admissible to prove defendant held himself out as person named

thereon).13 See also Mass. G. Evid. § 801(a) (2025) (including

13The defendant's argument that the identification document
was only a statement of "who the issuer of the identification
said [he] was," rather than a statement of who the defendant
claimed to be, is not persuasive. Even if the statement was
only admissible to prove that the defendant held himself out as
the person on the document, see Koney, 421 Mass. at 303, it
nonetheless is probative of the defendant's lack of a firearms
license. Cf. Commonwealth v. Encarnacion, 105 Mass. App. Ct.
46, 55 (2024) (evidence of defendant's admission of lack of
license "directly established that the defendant lacked"
license).

12
"nonverbal conduct" in definition of "statement"). As the

defendant's statement, the birthdate on the identification

document was not hearsay when offered as evidence against him

through the testimony of the police officers to whom the

defendant made the statement. See Commonwealth v. Allison, 434

Mass. 670, 676 & n.5 (2001) (defendant's admissions to killing

victim were statements of party opponent, not hearsay, and

admissible through witness to whom they were made); Mass. G.

Evid. § 801(d)(2)(A) (2025).

b. Best evidence challenge. "The best evidence rule

provides that, where the contents of a document are to be

proved, the party must either produce the original or show a

sufficient excuse for its nonproduction." Commonwealth v.

Ocasio, 434 Mass. 1, 6 (2001). Where the evidence at trial

permitted the trial judge to find that the defendant presented

his identification by showing the police an image on his cell

phone, after which the police returned the defendant's cell

phone to him, we are satisfied that the Commonwealth had

"sufficient excuse" for failing to produce the original

identification document. See id.; Koney, 421 Mass. at 302-303.

For that reason, assuming without deciding that the best

evidence rule applies to the identification the defendant

presented to the police on June 11, 2022, see Commonwealth v.

Proia, 98 Mass. App. Ct. 125, 131 (2020) (noting that whether

13
best evidence rule applies to driver's license "appears to be an

open question"), we discern no abuse of discretion in the trial

judge's decision to admit testimony about the birthdate shown on

the defendant's identification rather than require the

Commonwealth to introduce the original document (or the

defendant's cell phone). See Ocasio, supra, quoting 2 McCormick

on Evidence § 237 (5th ed. 1999) (best evidence rule is

"principally aimed, not at securing a writing at all hazards and

in every instance, but at securing the best obtainable evidence

of its contents").

c. CJIS challenge. The defendant argues that the

testimony at trial about the CJIS inquiry Hegerich conducted

using the name and birthdate Capriles took from the defendant's

identification was inadmissible hearsay.

Putting to the side for a moment the fact that the great

majority of the evidence in question was elicited by defense

counsel, and assuming that the evidence was inadmissible, we are

not persuaded that the defendant was prejudiced. This is

because the evidence that the CJIS search "confirmed" the

defendant's birthdate was only cumulative of other evidence that

we have determined was properly admitted, and the case against

the defendant was otherwise strong. See, e.g., Commonwealth v.

Wilson, 427 Mass. 336, 348 (1998) (no prejudice "in light of the

other evidence of [defendant's] guilt" where improperly admitted

14
hearsay was "merely cumulative of properly admitted evidence");

Commonwealth v. Encarnacion, 105 Mass. App. Ct. 46, 55 (2024).

Moreover, defense counsel's questions about the CJIS inquiry

were part of a strategy to highlight the fallibility of the CJIS

database, and his questioning was effective on that score. Both

Capriles and another prosecution witness, Brian Ball, agreed

that the accuracy of the CJIS search results depended on the

accuracy of the information included in its databases; indeed,

in Ball's words, human error -- "garbage in" --- could result in

inaccurate results -- "garbage out." See Commonwealth v. Jones,

439 Mass. 249, 262 (2003) (no prejudice resulted from improperly

admitted evidence where evidence in question supported

defendant's theory of case).

d. Voluntariness challenge. For the first time on appeal,

the defendant contends that if the birthdate he provided to the

police was a "statement," it was inadmissible because it was not

voluntary. Because the defendant neither raised the issue in

his motion to suppress nor presented it as a live issue at

trial,14 the record on it has not been developed. See

Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011) ("At a

suppression hearing, a defendant's statement initially is

14Nor did the motion judge raise it in her ruling on the
Commonwealth's motion in limine. See Commonwealth v. Page, 105
Mass. App. Ct. 532, 537 (2025).

15
presumed to be voluntary, placing the burden on the defendant to

produce evidence tending to show otherwise"); Commonwealth v.

Kirwan, 448 Mass. 304, 318 (2007) ("substantial evidence of

involuntariness" is required for voluntariness to be live

issue). As a result, the record is "not adequate to permit

review on the merits," and we consider the issue waived.

Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 (2019). See

Commonwealth v. Piard, 105 Mass. App. Ct. 428, 438-439 (2025).

Judgments affirmed.

By the Court (Henry, Hand &
Allen, JJ.15),

Clerk

Entered: April 6, 2026.

15 The panelists are listed in order of seniority.

16