Commonwealth v. Jheremy N. Sanchez.

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-813

COMMONWEALTH

vs.

JHEREMY N. SANCHEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Lawrence District Court, the

defendant was convicted of carrying a firearm without a license,

G. L. c. 269, § 10 (a); carrying a loaded firearm without a

license, G. L. c. 269, § 10 (n); and discharging a firearm

within 500 feet of a building, G. L. c. 269, § 12E.1 Because we

conclude that the evidence was sufficient to support the

convictions and any error in the admission of that evidence does

not require us to disturb the jury's verdicts, we affirm.

Discussion. 1. Sufficiency of the evidence. "Challenges

to the sufficiency of the evidence are evaluated under the

1The defendant was tried with a codefendant, Angel
Pimental. Only the defendant's appeal is before us.
Latimore standard, that 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. Witkowski,

487 Mass. 675, 679 (2021), quoting Commonwealth v. Latimore, 378

Mass. 671, 677 (1979). After careful review, we are satisfied

that the evidence here was sufficient to show that the car

pictured in a video recording of the shooting at issue was the

gray Nissan in which the defendant was later seen, that the

defendant was seated in the front passenger's seat of that

Nissan at the time of the shooting, and that he discharged a

"firearm" as that term is defined for the purposes of G. L.

c. 269, §§ 10 and 12. See G. L. c. 269, § 10 (a) (prohibiting

unlicensed possession of "a firearm . . . as defined in [G. L.

c. 140, § 121]"); G. L. c. 269, § 10 (n) ("Whoever violates

paragraph (a) . . . , by means of a loaded firearm, . . . shall

be further punished" by consecutive sentence of incarceration);

G. L. c. 269, § 12E (criminalizing discharge of "a firearm as

defined in [G. L. c. 140, § 121] within 500 feet of a . . .

building in use"); G. L. c. 140, § 121 (defining "firearm" as

including "a pistol, revolver or other weapon of any

description, loaded or unloaded, from which a shot or bullet can

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be discharged and of which the length of the barrel or barrels

is less than [sixteen] inches").

Viewed under the Latimore standard, the evidence was that,

at approximately 9:20 A.M. on March 5, 2022, shots were fired

from the passenger's side of a moving car on Pearl Street in

Lawrence. A security camera on a neighboring home created a

video recording of the shooting, and the police took a still

photograph of the car from a different video recording. Based

on these and other video recordings that the police collected

from municipal and private video cameras throughout the city,

and the testimony of the Commonwealth's witnesses, the jury

could have concluded that the car involved in the Pearl Street

shooting was a gray four-door Nissan sedan with New Hampshire

license plates, lowered windshield visors, a distinctive pair of

decals in the front window, and wheel rims of a particular

style.

The jury could also have found that, after leaving the

scene of the shooting, the same gray Nissan drove from Pearl

Street to Melrose Court, where it stopped behind the building at

6 Hancock Street -- the home of codefendant Angel Pimental. The

Nissan's driver briefly left the car, went into 6 Hancock Street

through the back door, and then returned to the Nissan and drove

away. The Nissan then continued to Gigante Meat Market (market)

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where the driver, whom the jury could have found was Pimental,

parked.

At that point, the defendant got out of the Nissan's front

passenger seat.2 From the time of the shooting to the Nissan's

arrival at the market, approximately fifteen minutes had

elapsed. The jury could have concluded that no one got in or

out of the passenger's side of the Nissan between the time of

the shooting and the time the Nissan stopped at the market.

Taken together, this evidence was sufficient to establish that

the Nissan in which the defendant was riding when he arrived at

the market was the same one from which the shots were fired on

Pearl Street, and that the defendant was in the seat from which

those shots were fired. See Commonwealth v. Spaulding, 495

Mass. 300, 309 (2025), quoting Commonwealth v. Shakespeare, 493

Mass. 67, 80 (2023) ("The inferences a fact finder may draw from

the evidence 'need only be reasonable and possible and need not

be necessary or inescapable'").

Even though the weapon used in the shooting was never

recovered, the evidence was likewise sufficient to allow the

jury to conclude that the shots were fired from a "firearm" -- a

2 Video recordings made inside the market included images of
the faces, clothing, and hairstyles of all three occupants of
the Nissan, and permitted the jury to find that Pimental was the
driver, and the defendant was the front seat passenger.

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handgun having a barrel length under sixteen inches long.

Although we agree with the defendant that the video of the

shooting is too grainy and the resolution of that video is too

poor to allow a reasonable juror to determine the barrel length

of the weapon used, the video was not the only evidence on that

point. The police found nine-millimeter shell casings at the

scene of the shooting and a Glock magazine containing nine-

millimeter shells in Pimental's home, where the gray Nissan

stopped very shortly after the shooting. It was "reasonable and

possible," even if not "necessary," Spaulding, 495 Mass. at 309,

quoting Shakespeare, 493 Mass. at 80, for the jury to infer that

the Glock magazine found at the codefendant's home was used in

the discharge of nine-millimeter ammunition during the Pearl

Street shooting, and that Pimental stopped at his home minutes

after the shooting to leave the magazine there for safekeeping.

See Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 827 (2012),

quoting Commonwealth v. James, 424 Mass. 770, 778 (1997) (it is

reasonable to believe that defendant would seek to hide evidence

of criminal activity in his home, "particularly those items that

were 'durable, [and] of continuing utility to [him]'").

Moreover, although there was testimony at trial that nine-

millimeter rounds could be used in both rifles and handguns, and

that Glock makes both rifles and handguns, Detective Alexander

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Ovalles testified that "[the Glock magazine] could be inserted

into a [nine-millimeter] Glock firearm;" that a nine-millimeter

Glock firearm was a handgun; and that the barrel of the nine-

millimeter Glock firearm was shorter than the average rifle's

barrel length of sixteen inches.3 We conclude that the evidence

was therefore sufficient to sustain the defendant's convictions.

See G. L. c. 140, § 121; Commonwealth v. Sperrazza, 372 Mass.

667, 670 (1977) (testimony that witness saw defendant "draw a

revolver" and that weapon "was a 'handgun'" was sufficient to

establish that gun was "firearm").

2. "BOPFI" evidence. At trial, the Commonwealth called

Kevin Scaplen, a retired member of the Massachusetts State

police then working for the Department of Criminal Justice

Information Services (DCJIS), to prove that, at the time of the

shooting, the defendant did not possess a license to carry

firearms. To do so, Scaplen described his own search of certain

firearms licensing databases (BOPFI search), testifying that,

when he input the defendant's name and date of birth, the result

3 None of the witnesses was asked whether the Glock magazine
recovered from Pimental's home was compatible with any Glock
rifles. As a result, the jury heard only that the magazine was
compatible with a nine-millimeter Glock handgun.

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was "No Records Found."4 According to Scaplen, that result

indicated that the defendant did not have a license to carry

firearms.

Even assuming that the record supports the defendant's

contention that Scaplen obtained the defendant's name and

birthdate from a DCJIS colleague, Amy Conway, we are not

persuaded that Scaplen's testimony violated the confrontation

clause. "The confrontation clause bars the admission of

testimonial hearsay by a declarant who does not appear at trial,

unless the declarant is unavailable to testify as a matter of

law and the defendant had an earlier opportunity to cross-

examine [that declarant]." Commonwealth v. McGann, 484 Mass.

312, 316 (2020). Here, the declarant, Scaplen, did testify, and

the defendant had the opportunity to cross-examine him (although

he opted not to do so). We therefore discern no confrontation

clause issue stemming from Scaplen's testimony about his own

BOPFI search. Cf. Commonwealth v. Encarnacion, 105 Mass. App.

Ct. 46, 52-53 (2024).

We are likewise unpersuaded that, if Conway provided

Scaplen with the name and birthdate he used for his BOPFI

4 Counsel appear to have agreed on this procedure before
trial as a way of ensuring that the jury did not hear evidence
of the defendant's prior bad acts.

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search, the search results would be inadmissible hearsay.

Scaplen was available to testify about the name and date of

birth he used in his BOPFI search, and no viable hearsay

argument grows out of the fact that the source of this

information was a nontestifying witness.5 See Commonwealth v.

Randall, 50 Mass. App. Ct. 26, 27-28 (2000); Mass. G. Evid.

§ 801(c) (2024). Contrast Encarnacion, 105 Mass. App. Ct. at 51

(testimony was hearsay where witness stated that, based on

results of search run by another person, defendant was not

licensed to carry firearms).

We reach a different conclusion as to the admission of

exhibit 10, which Scaplen testified was a copy of the results of

a separate BOPFI search that Conway ran. Where Conway ran the

search, did not testify at trial, and was not (so far as the

record reveals) "unavailable" to testify, the results of the

BOPFI search that she conducted should not have been admitted.

See Encarnacion, 105 Mass. App. Ct. at 53-55. Considering "the

totality of the record before us," however, including that (1)

5 In his brief, the defendant cites to Commonwealth v.
Trotto, 487 Mass. 708, 731-732 (2021), to support his argument
that, because Conway obtained the defendant's name and date of
birth by conducting a "name search" of an unspecified database,
the results of the search constituted testimonial hearsay. The
citation is unavailing, however, because there was no evidence
that Conway obtained the defendant's name and date of birth
through a database.

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the defendant's identity as the shooter, and not his licensure,

was "the premise of the defense," and (2) the result of Conway's

search -- the single statement, "No Records Found" -- was

identical to the result of the BOPFI search that Scaplen ran, we

conclude that the error in admitting exhibit 10 was harmless

beyond a reasonable doubt (citations omitted). Id. at 53-55.

3. Conditional relevance determination. As we have noted,

the jury heard evidence that, after the shooting, a Glock

magazine was discovered in Pimental's home.6 The defendant had

moved in limine to exclude that evidence as irrelevant, however.

After a hearing, the judge concluded that the evidence was

conditionally relevant and denied the motion on that basis. The

judge then instructed the jury that they could consider the

evidence of the magazine if, and only if, they found beyond a

reasonable doubt that the magazine was used in the shooting.

There was no abuse of discretion in the judge's handling of

this conditional relevancy determination. See Commonwealth v.

Meola, 95 Mass. App. Ct. 303, 308-309 (2019). "[T]he judge has

a gatekeeper role, which requires the judge to assess the

evidence and determine whether the jury or judge, acting as the

fact finder, could find that the item in question is what its

6 The police found the magazine in a safe belonging to
Pimental's brother.

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proponent claims it to be." Id. at 308. Here, the jury could

have inferred, without engaging in improper speculation, that

the magazine holding nine-millimeter bullets was used in the

shooting on Pearl Street and was left by Pimental at his home

several minutes afterward. Where the jury were properly

instructed on their obligation to decide first whether "the

magazine and the ammunition that were recovered from the

apartment at 6 Hancock Street was the magazine that was inserted

into a firearm that was alleged to be discharged on March 5th,

2022," and on their ability to consider the magazine as evidence

"only . . . if [they] find, beyond a reasonable doubt, that it

was the magazine that was in the firearm that was allegedly

discharged on that date," the judge correctly addressed the

conditional relevance question. See Meola, supra at 308-309.

If, as we presume was the case, the jury did make those

findings, then the magazine was one link in the chain of

evidence connecting the defendant to the crimes with which he

was charged, and so was relevant. See id. at 307.

4. Fingerprint analyst's testimony. The Commonwealth

called State police Sergeant Gary Comeau, a member of the crime

scene services section (CSSS), to testify about his role in

photographing and "processing" the gray Nissan for fingerprints

after the defendant's arrest. Comeau found three latent

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fingerprint impressions in the front passenger seat area. He

compared those latent prints to the defendant's known prints and

found "no conflicts." He then developed an opinion that those

three impressions were "identified to" the defendant's known

prints.7

On cross-examination, defense counsel pressed Comeau about

whether investigative techniques other than fingerprinting,

including tests for the presence of gunshot residue, were

"typically" used in investigations of shooting crimes. Comeau

demurred, testifying that "every situation is a little bit

different." Explaining that the decision whether to include

additional scientific investigations "would vary [based] on the

severity" of the situation, he added, "[o]ftentimes, a

fingerprint identification stops that process because you have

[one hundred] percent of an identification completed." Although

the defendant did not object to this testimony at trial, he

argues on appeal that it amounted to an improper opinion on

Comeau's level of certainty about his fingerprint

identifications. See Commonwealth v. Gambora, 457 Mass. 715,

729 n.22 (2010) ("Testimony to the effect that a latent print

7 Comeau was not asked on direct examination to testify to
his opinion with any particular degree of certainty, and he did
not do so. He declined to use the term "match," and instead
used "identification."

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matches, or is 'individualized' to, a known print, if it is to

be offered, should be presented as an opinion, not a fact, and

opinions expressing absolute certainty about, or the

infallibility of, an 'individualization' of a print should be

avoided").

The challenged statement was not directly responsive to the

question defense counsel asked; when Comeau made the statement,

he was responding to a line of questioning designed to establish

a Bowden defense about the investigators' failure to perform

gunshot residue testing, not to challenge the reliability of his

own fingerprint individualization opinion. See Commonwealth v.

Bowden, 379 Mass. 472, 485-486 (1980). Additionally, on direct

examination, Comeau expressed his individualization conclusions

as an opinion, and did not express a level of certainty, much

less "absolute certainty" or the "infallibility of" his

opinions. See Gambora, 457 Mass. at 729 n.22. He stated only

that he had "identified" the latent prints "to" the defendant's

known prints.

Still, even reading Comeau's statement elicited on cross-

examination as an impermissible opinion that he was one hundred

percent certain about his fingerprint identification, see id. at

726 (recognizing "the need to prevent overstatement of the

accuracy of fingerprint comparisons"), we discern no substantial

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risk that justice miscarried because of its admission. See

Commonwealth v. Azar, 435 Mass. 675, 686 (2002), S.C., 444 Mass.

72 (2005) (unpreserved errors reviewed for substantial risk of a

miscarriage of justice). The jury saw video footage from the

market showing the defendant as he left the front passenger's

side of the gray Nissan, and they heard that the defendant was

again in that seat when police stopped the gray Nissan later

that day. See Commonwealth v. Alphas, 430 Mass. 8, 23 (1999)

(error must be serious when considered in terms of its injurious

effect or influence on jury's verdict). Accordingly, Comeau's

testimony did no more than corroborate other, properly admitted

evidence showing that the defendant had likely been in the front

passenger's seat of the Nissan at some time before the car was

processed.

Judgments affirmed.

By the Court (Hand, Grant &
Wood, JJ.8),

Clerk

Entered: June 30, 2025.

8 The panelists are listed in order of seniority.

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