Commonwealth v. Pedro Leacock.

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-296

COMMONWEALTH

vs.

PEDRO LEACOCK.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of sixteen

counts of aggravated rape of a child, twenty-four counts of rape

of a child with force, fourteen counts of rape, four counts of

incest, three counts of indecent assault and battery on a child

under the age of fourteen, five counts of indecent assault and

battery on a child over the age of fourteen, assault and

battery, and strangulation. 1 In this consolidated appeal, the

defendant claims that (1) the trial judge erred by denying his

motion for a required finding of not guilty as to certain

charges for lack of force; (2) his trial counsel was ineffective

1The defendant was acquitted of four counts of rape of a
child with force and improper storage of a firearm.
for failing to request a specific unanimity instruction; and

(3) the motion judge erred in denying his amended motion for a

new trial based on his trial counsel's failure to raise a

purportedly viable argument for suppression. Discerning no

errors, we affirm.

Background. We recite the following facts that the jury

could have found, reserving some facts for later discussion.

In 2005, on the victim's eleventh birthday, she moved with

her mother from Barbados to the United States into an apartment

with her father, the defendant. Shortly after the victim moved

into the apartment, the defendant began to sexually abuse her.

The abuse, which included digital, oral, and penile penetration,

took place almost every day. Despite the abuse, the victim

testified that she had a close relationship with the defendant

and felt that "[h]e was one of [her] best friends." She

testified that her reaction to the abuse was to "just let him"

proceed as she thought the abuse was "normal."

The victim testified that in 2010, when she was sixteen,

she remained close to the defendant but they began to argue. He

prevented her from going out with friends. The sexual abuse

continued. She testified that she began to be "okay with it

less and less" and to make excuses to avoid the defendant's

advances.

2
In 2011, when the victim was seventeen, the sexual abuse

decreased from nearly daily to three to five times per week.

The victim and the defendant remained close. He drove her to

and from school each day and did not allow her to do anything

outside the house or with friends. He started to hit her if she

"didn't do what he [said] or . . . what he wanted." The

following year, his physical abuse escalated into punching and

slapping her; he engaged in other controlling behaviors, such as

searching through her room and laundry and locking her out of

the house. He continued to sexually assault her both at home

and at hotels.

In April 2015, after a harrowing physical confrontation

with the defendant that served as the basis for his convictions

of assault and battery and strangulation, the victim sought a

restraining order. Based on the information that the victim

provided to police, officers went to the home to arrest the

defendant. When officers advised the defendant of their intent

to arrest him for domestic assault and battery, the defendant

admitted to pushing the victim against the wall because "she was

being disrespectful." After the defendant was arrested, police

officers recovered a pistol, several rounds of ammunition, and a

taser from the home.

Discussion. 1. Constructive force. The defendant

maintains that there was inadequate evidence of force. He

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asserts that the counts charging him with rape of a child with

force (before the victim turned sixteen) should have been

dismissed because the jury heard no evidence of physical force

or threat of bodily harm. As to the counts charging him with

rape (after the victim turned sixteen), the defendant maintains

that the victim consented so dismissal was required.

Specifically, the defendant insists that "because the abuse

began at a young age, [the victim] believed there was nothing

wrong with the abuse" and therefore consented.

The defendant's argument ignores established case law on

constructive force. See Commonwealth v. Caracciola, 409 Mass.

648, 653 (1991) ("force needed for rape may, depending on the

circumstances, be constructive force, as well as physical force,

violence, or the threat of bodily harm"); Commonwealth v.

Armstrong, 73 Mass. App. Ct. 245, 254 (2008) ("Proof of the

force element of rape under G. L. c. 265, § 22A [rape of a child

by force], may be established by physical force or constructive

force"). Therefore, the claim must fail. See Commonwealth v.

Dube, 59 Mass. App. Ct. 476, 485 (2003); Commonwealth v. Healy,

26 Mass. App. Ct. 990, 991 (1998).

In reviewing the sufficiency of the evidence of force, we

view the evidence in the light most favorable to the

Commonwealth to determine whether "any rational trier of fact

could have found the essential elements of the crime beyond a

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reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319

(1979). There must be sufficient evidence for the jury to

conclude beyond a reasonable doubt that the sexual acts were

"against [the] will" of the child. G. L. c. 265, § 22A. See

Caracciola, 409 Mass. at 653. "Constructive force requires

proof that the victim was afraid or that she submitted to the

defendant because his conduct intimidated her" (quotation and

citation omitted). Commonwealth v. Vasquez, 462 Mass. 827, 846

(2012). A determination of constructive force requires

"examination of the circumstances or fear in which the victim is

placed, the impact of those circumstances or fear on the

victim's power to resist and the defendant's conduct."

Caracciola, supra at 651.

Viewed in the light most favorable to the Commonwealth, the

evidence here was sufficient for a finding of constructive force

as to the events taking place before the victim was sixteen. 2

2 The victim's testimony permitted the jury to find actual
force for some of the charges. For example, the first time that
the defendant penetrated the victim's vagina with his finger,
she said that she felt "[a]wkward" and "[u]ncomfortable" and
that she tried to move away from him. Likewise, the first time
that the defendant instructed the victim to fellate him, she
testified that, "I like didn't want to . . . like [he] told me
like -- just pretty much like just do it kind of thing." He
then moved her head, "touching the back of [her] head" with his
hand, "towards [his penis] in a way, and then [she] ended up
just doing it." She testified that this encounter made her feel
"[u]ncomfortable, and [she] didn't want to do it." See

5
The abuse began when the victim was eleven years old and was

perpetrated by a substantially older and presumably larger

adult, her father. See Armstrong, 73 Mass. App. Ct. at 255 ("By

looking to the child's age and size, a [fact finder] could

reasonably have inferred that the [rape] took place by force and

against [her] consent" [citation omitted]). The victim

testified that that she did not leave the home without the

defendant, that the defendant did not permit her to socialize

with friends after school, and her free time was spent only with

the defendant. As in Commonwealth v. Newcomb, 80 Mass. App. Ct.

519, 522-523 (2011), the victim was dependent on the defendant

not only for traditional needs -- such as money, food, and

housing -- but the victim was also isolated from family and

friends as she had relocated from a different country with only

her mother.

Any lack of explicit testimony about the victim's fear of

the defendant when she was a young child enduring his abuse 3 need

not derail our conclusion because that "does not mean that the

Commonwealth v. Testa, 102 Mass. App. Ct. 149, 152-153 (2023)
(evidence of force sufficient where, among other things,
defendant placed victim's hand onto his erect penis).
3 There was extensive testimony on the victim's fear of the

defendant as she aged, as when she began rebuffing the
defendant's attempts to abuse her, the defendant became violent
with her. Accordingly, the defendant's use of force in getting
the victim to submit to him appears obvious for the rape charges
pertaining to the period of time after the victim turned
seventeen.

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evidence was not sufficient to show that the rapes were

committed against the victim's will, or that her power to resist

was not overborne by the defendant." Armstrong, 73 Mass. App.

Ct. at 256. "Indeed, that the victim endured the rapes with

resignation and with no will to resist . . . is reflective of

the very nature of the application of constructive force with

respective to the crime of rape of a young person." Id.

The evidence was also sufficient that the victim did not

consent to the sexual encounters after she turned sixteen.

These "events must be viewed in light of the history of [the

victim's and the defendant's] relationship and the defendant's

predatory behavior." Commonwealth v. Wallace, 76 Mass. App. Ct.

411, 418 (2010). While the victim had reached the age of

consent at this time, "Massachusetts decisional law has

recognized that sexual conduct involving a young adult may well

constitute rape because of what occurred before the victim

matured." Newcomb, 80 Mass. App. Ct. at 523. "By the time [the

victim] had turned sixteen, the defendant had been raping [her]

for many years, starting when [she] was as young as eleven."

Wallace, supra. See Newcomb, supra at 524 ("childhood assaults

rendered the victim incapable of consenting to sexual

intercourse with the defendant, and therefore, the only force

that need be shown is the force necessary to accomplish the

act"). The defendant concedes in his brief that once the victim

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turned sixteen, she "would make excuses of why she didn't want

to engage in sexual activity" but would acquiesce when pressed.

See Armstrong, 73 Mass. App. Ct. at 256 (evidence of force still

sufficient where young victim "accepted" rape because she

"didn't think anything was wrong with it"). This is not

consent.

2. Ineffective assistance of counsel. We review this

claim under the familiar Saferian standard. See Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). The defendant makes two

relevant arguments: he maintains that trial counsel (1) was

ineffective for failing to request a specific unanimity

instruction, an argument raised for the first time on appeal;

and (2) "failed to raise a viable basis for suppressing the

firearm, the taser, and the statement that the defendant made at

the time of his arrest."

a. Failure to request a specific unanimity instruction.

The defendant asserts that, "given the lengthy count indictment

presented to the jury[,] a specific unanimity instruction could

have made a difference in deliberations." Compare Commonwealth

v. Conefrey, 420 Mass. 508, 513-514 (1995) (error where

defendant requested specific unanimity instruction, none was

given, and significant likelihood existed that "conviction

resulted from different jurors concluding that the defendant

committed different acts"). Because this argument was not

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preserved in the trial court, see Commonwealth v. Quint Q., 84

Mass. App. Ct. 507, 514 (2013), we reverse only if the defendant

demonstrates the existence of an error that creates a

substantial risk of a miscarriage of justice. See Commonwealth

v. Randolph, 438 Mass. 290, 294-295 (2002). There was no error.

While it is true that the Commonwealth presented evidence

of multiple acts occurring over a large span of time to support

seventy-three indictments, the verdict slips -– to which no

party objected -- specified the acts and dates for each

indictment. The judge properly instructed the jury. And the

victim's testimony provided details, including general

timeframes and locations, of abuse spanning several years. See

Commonwealth v. Sanchez, 423 Mass. 591, 600 (1996); Commonwealth

v. Monzon, 51 Mass. App. Ct. 245, 254-255 (2001) (specific

unanimity instruction not necessary where no danger of lack of

unanimity in jury's verdict because "victim testifies to a

pattern of repetitive and abusive conduct, of necessity

encompassing a number of discrete acts"). In the circumstances,

trial counsel was not ineffective for choosing not to request an

instruction on unanimity.

b. Failure to raise a suppression argument. The defendant

maintains that trial counsel was ineffective in not contesting

the legality of the police entry into his home and seeking to

suppress on that basis the firearm, the taser, and his statement

9
that he pushed the victim for being disrespectful. 4 He first

raised this ineffective assistance claim in a motion for new

trial that, as amended, was denied by a judge, who was neither

the trial judge nor the suppression judge.

We review the motion judge's denial of the motion for a new

trial "only to determine whether there has been a significant

error of law or other abuse of discretion." Commonwealth v.

Grace, 397 Mass. 303, 307 (1986). Here, the motion judge was

well within his discretion to conclude that the wife twice

consented to police entry -- first, at the time of the

defendant's arrest, and second, when officers returned to

retrieve the firearm -- because officers testified that she had

let them into the home. See Commonwealth v. Podgurski, 44 Mass.

App. Ct. 929, 930 (1998), citing Commonwealth v. Ortiz, 422

Mass. 64, 70 (1996) ("Family members who live in a home together

may validly consent to a search of that home").

The defendant fails to challenge this testimony. Instead,

he relies on there being no reference in the police report to a

consent to entry. This absence does nothing to undermine the

testimony of an arresting officer that, after knocking on the

door, the wife "let [the officers] into the residence" prior to

4 As a result of the seizure of the items, the defendant was
charged with improper storage of a firearm, of which he was
acquitted. The jurors were instructed not to consider the
possession of the taser as a criminal act.

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the arrest and again "let [them] in" the home later. On such a

record, the motion to suppress would have likely been

unsuccessful, and "[i]t is not ineffective assistance of counsel

when trial counsel declines to file a motion with a minimal

chance of success." Commonwealth v. Testa, 102 Mass. App. Ct.

149, 155 (2023), quoting Commonwealth v. Clemente, 452 Mass.

295, 327 (2008). See Commonwealth v. Moniz, 87 Mass. App. Ct.

532, 538 (2015) ("Because a motion to suppress would have been

futile, the defendant cannot demonstrate that counsel was

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ineffective for failing to pursue it, or that counsel's failure

to do so deprived him of a substantial defense").

Judgments affirmed.

Order denying defendant's
amended motion for new
trial affirmed.

By the Court (Neyman,
Hershfang & Hodgens, JJ. 5),

Clerk

Entered: June 24, 2024.

5 The panelists are listed in order of seniority.

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