Commonwealth v. Sylvester Agyeah.

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-965

COMMONWEALTH

vs.

SYLVESTER AGYEAH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Sylvester Agyeah, was convicted of resisting arrest

in violation of G. L. c. 268, § 32B. The defendant appeals from

the denial of his motion for a new trial after a nonevidentiary

hearing. We affirm.

Background. The defendant is a citizen of Ghana and has

been a permanent resident of the United States since 2013. The

present matter stems from an incident that occurred on April 26,

2018, in Worcester. On that date, members of the Worcester

Police Department were conducting a "john sting," targeting

individuals soliciting prostitutes near Loudon Street. At

approximately 9:30 P.M., officers identified and engaged in a

struggle with a "john" in the middle of Loudon Street. As the

officers struggled with the john, the defendant approached the
scene in his motor vehicle, caused a "commotion" by "yelling

from his vehicle," argued with officers regarding the john's

arrest, created "a safety issue" for the officers struggling to

arrest the john, and refused several requests to leave the area

despite being warned that he would be arrested "for interfering

with police and disorderly conduct." Despite several warnings,

the defendant continued to argue with the officers. Thus, the

officers ordered him to exit his vehicle. The defendant

complied, but then "used force to pull away from [the officers]

so that he couldn't be placed into handcuffs," "pushed his body

back from the car . . . and pulled his arms away from [the

officers'] grasps." After a struggle, two officers "forcibly

put [the defendant's] arms behind him," "gain[ed] control of

him," and placed him in handcuffs.1

The defendant testified at trial and claimed, inter alia,

that an officer knocked the cell phone that he was using to

record the incident out of his hand and later took it from him;

that the officers never asked him to move his vehicle; that he

could not leave because his vehicle was blocked in by other

1 The officers were unable to double lock the defendant's
handcuffs because he was not compliant. Also, when walking the
defendant to the transport wagon, an officer applied a
"wristlock" technique because the defendant "was resisting the
efforts to go to the wagon" while he "continued yelling and
screaming." Officers testified that the defendant did not
complain of any injuries.

2
vehicles; that he complied when asked to put his hands behind

his back; that an officer twisted his handcuffs, causing him

pain and injury to his wrists; and that one of the officers made

a disparaging racial remark to him.2

The defendant was charged with disorderly conduct,

disturbing the peace, resisting arrest, and the common law crime

of interfering with a police officer. Aware of the defendant's

status as a permanent resident, trial counsel advised his client

early in his representation "that a conviction could have

immigration consequences," but told the defendant that he "was

not an immigration attorney" and referred him to two local

immigration lawyers. Following this advice, the defendant spoke

with an immigration lawyer after his arraignment who advised him

that "if [he] was convicted, [he] could be prevented from

applying for United States citizenship for five years."

On May 30, 2019, the day scheduled for trial, the

Commonwealth offered to dismiss the resisting arrest charge and

decriminalize the disorderly conduct and disturbing the peace

charges if the defendant agreed to be found responsible for the

2 During an August 1, 2022 hearing on the defendant's posttrial
motion to present expert testimony, appellate defense counsel
represented that the defendant had filed a civil suit in Federal
court against the Worcester Police Department. However, that
matter is not before us.

3
two civil infractions. The defendant rejected the offer,3 and

following trial that same day, a jury convicted him of resisting

arrest and acquitted him of disorderly conduct and disturbing

the peace.4 The judge sentenced the defendant to one year of

administrative probation that terminated on May 26, 2020.

The defendant filed a motion for a new trial in June of

2022, arguing that trial counsel rendered ineffective assistance

in two areas. First, he argued that trial counsel failed to

advise him of the immigration consequences of the Commonwealth's

plea offer compared to that of proceeding to trial. In his

accompanying affidavit, the defendant averred that trial counsel

did not explain that if he accepted the Commonwealth's offer,

there would be "no statutory bar to [his] applying for United

States citizenship, but that if [he] was convicted of resisting

arrest, [he] could be barred from applying for five years."

Second, the defendant argued that trial counsel failed to

present "important evidence implicating the credibility of

government witnesses" where the case was a "credibility contest

3 The defendant does not allege that trial counsel advised him to
reject the Commonwealth's offer. To the contrary, the trial
transcript reveals that the judge explained on the record that
the Commonwealth was "going to dismiss the resisting
arrest . . . [and] decriminalize the disorderly, disturbing."
Trial counsel acknowledged the offer, stating, "I explained that
to my client."
4 The interfering with a police officer charge was dismissed at

the Commonwealth's request with the defendant's consent.

4
between the police and [the defendant]." The motion judge, who

was also the trial judge, denied the defendant's motion after a

nonevidentiary hearing. This appeal followed.

Discussion. "To prevail on a motion for a new trial

claiming ineffective assistance of counsel, a defendant must

show that . . . 'behavior of counsel [fell] measurably below

that which might be expected from an ordinary fallible lawyer,'

and that counsel's poor performance 'likely deprived the

defendant of an otherwise available, substantial ground of

defence.'" Commonwealth v. Millien, 474 Mass. 417, 429-430

(2016), quoting Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). "We review a judge's denial of a motion for a new trial

for 'a significant error of law or other abuse of discretion,'

granting 'special deference to the rulings of a motion judge who

was also the trial judge.'" Commonwealth v. Alcide, 472 Mass.

150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469,

488 (2014).

1. Immigration consequences. The defendant asserts that

trial counsel rendered ineffective assistance by failing to

inform him that accepting the Commonwealth's offer to dismiss

the resisting arrest charge and decriminalize the remaining

charges presented no adverse immigration consequences, while a

conviction for resisting arrest was "likely to set his

5
application for citizenship back at least five years." On the

record before us, the argument is unpersuasive.

"[D]efense counsel [has] a duty to inform a noncitizen

client that conviction, whether by plea or by trial, may carry

adverse immigration consequences." Commonwealth v. Sylvain, 466

Mass. 422, 436 (2013), quoting Commonwealth v. Marinho, 464

Mass. 115, 125 (2013). "In determining whether the defendant

met his burden under the performance prong of the Saferian

standard, we must first address what level of advice [trial]

counsel [was] constitutionally required to provide the defendant

given the charges against him."5 Commonwealth v. Henry, 88 Mass.

App. Ct. 446, 452 (2015). The level of advice required depends

upon the certainty of risk that the defendant faces. When the

immigration consequences are "truly clear," then "the duty to

give correct advice is equally clear." Commonwealth v. Chleikh,

5 We reject the defendant's contention that the Commonwealth is
estopped from arguing that he did not meet his burden on the
"performance prong" of the ineffective assistance test because
the Commonwealth conceded the issue below. Judicial estoppel
"precludes a party from asserting a position in one legal
proceeding that is contrary to a position it had previously
asserted in another proceeding" (citations omitted).
Commonwealth v. McGilvery, 74 Mass. App. Ct. 508, 509-510
(2009). However, the doctrine only applies where the party
"succeeded in convincing the court to accept its prior position"
(citation omitted). Id. at 510. Here, the motion judge did not
accept the Commonwealth's position on the first prong, but
rather concluded that the defendant failed to demonstrate that
counsel's performance "fell measurably below that which might be
expected from an ordinary fallible lawyer."

6
82 Mass. App. Ct. 718, 723 (2012), quoting Padilla v. Kentucky,

559 U.S. 356, 369 (2010). However, "when the law is not

succinct and straightforward, . . . a criminal defense attorney

need do no more than advise a noncitizen client that pending

criminal charges may carry a risk of adverse immigration

consequences." Id., quoting Padilla, supra.

Here, it is far from clear that resisting arrest

constitutes a "crime involving moral turpitude" such that a

conviction would bar the defendant from applying for citizenship

for five years for lack of "good moral character." 8 U.S.C.

§ 1427(a).6 The defendant has not identified any legal

authority, nor are we aware of any, indicating that resisting

arrest is a crime involving moral turpitude. Contrast

Commonwealth v. DeJesus, 468 Mass. 174, 180-181 (2014) (relevant

immigration statute "succinct, clear, and explicit" about

removal consequences for noncitizens convicted of possession

with intent to distribute cocaine). Rather, the defendant

relies on conclusory statements in affidavits unsupported by

6 8 U.S.C. § 1427(a) requires applicants for naturalization to be
of "good moral character" for five years preceding the date of
their application. A person who is convicted of or admits to
having committed a "crime involving moral turpitude" is
precluded from being regarded as a person with good moral
character. See 8 U.S.C. § 1101(f)(3); 8 U.S.C.
§ 1182(a)(2)(A)(i)(I).

7
legal authority.7 Contrast Commonwealth v. Balthazar, 86 Mass.

App. Ct. 438, 442-443 (2014) (defendant cited legal authorities

indicating larceny and malicious destruction of property are

crimes involving moral turpitude that would subject defendant to

"presumptively mandatory deportation"). Where counsel's advice

to the defendant -- that a conviction could have immigration

consequences and referring him to two immigration lawyers -- was

consistent with the requirements of Padilla and its progeny,

see, e.g., Chleikh, 82 Mass. App. Ct. at 723, the judge did not

err or abuse his discretion when he found that the defendant

failed to show the "serious incompetency, inefficiency, or

inattention of counsel" required to satisfy the first prong of

the ineffective assistance test.8 Saferian, 366 Mass. at 96.

7 The defendant's immigration expert, Attorney Valentin, averred
in an affidavit that "immigration officials would likely
consider the defendant's conviction for resisting arrest to be a
'crime involving moral turpitude,'" but acknowledged that
"[t]here is no case law" analyzing the immigration consequences
of resisting arrest in violation of G. L. c. 268, § 32B. The
defendant's other immigration expert, Attorney Harrington,
averred in an affidavit that "in [his] experience," permanent
residents convicted of resisting arrest are "at risk of being
denied reentry" to the United States and will not be granted
citizenship for "at least five years." Consistent with this
view, in his own affidavit, the defendant averred that an
immigration lawyer advised him that if convicted he "could be
prevented from applying for Unites States citizenship for five
years." The defendant further averred in his affidavit that he
was "told" by some unnamed source that, because of his
conviction for resisting arrest, he must wait five years from
the end of his probation term to apply for citizenship.
8 The defendant's trial counsel averred in an affidavit that he

advised the defendant that a conviction could have immigration

8
Even assuming, arguendo, that the defendant satisfied the

first prong of the Saferian test, we agree with the judge that

he failed to satisfy the second, "prejudice" prong. In the

present case, "[h]aving to stand trial, not choosing to waive

it, is the prejudice alleged." Lafler v. Cooper, 566 U.S. 156,

163-164 (2012). To establish prejudice in the plea context,

"the defendant must demonstrate a reasonable probability that

the prosecution would have made an offer, that the defendant

would have accepted it, and that the court would have approved

it." Marinho, 464 Mass. at 129. As evidence that he would have

accepted the Commonwealth's offer, the defendant relies on his

statement in his affidavit that he "would never have taken [his]

chances at trial" if counsel had explained that accepting the

offer would ensure that he was not barred from applying for

citizenship for five years. However, the motion judge was

entitled "to reject as not credible the defendant's self-

serving, conclusory affidavit," see Commonwealth v. Grant, 426

consequences but that he was not an immigration attorney. He
further averred that he "referred [the defendant] to two local
attorneys who practice immigration law." The defendant, in his
affidavit, averred that trial counsel told him that he could not
advise him of immigration consequences, but "should
independently seek the advice of an immigration lawyer." The
defendant further acknowledged in is affidavit that he "did talk
to an immigration lawyer shortly after [his] arraignment . . .
[and] was advised that if [he] was convicted, [he] could be
prevented from applying for United States citizenship for five
years."

9
Mass. 667, 673 (1998), and here implicitly did so. The

defendant, having followed counsel's advice and spoken to an

immigration attorney, knew at the time of the plea offer that if

he was convicted, his citizenship application could be barred

for five years. The defendant did not assert that counsel

advised him not to accept the deal, or that he did not

understand that a dismissal and decriminalization to civil

infractions for the remaining charges did not constitute a

conviction. Accordingly, the defendant has met neither prong of

the Saferian test, and we cannot conclude that the motion

judge's determination "falls outside the range of reasonable

alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

2. Failure to present evidence implicating the credibility

of government witnesses. The defendant next contends that trial

counsel rendered ineffective assistance by failing to present

certain evidence implicating the credibility of the officers'

testimony. We disagree.

"Generally, failure to impeach a witness does not amount to

ineffective assistance of counsel." Commonwealth v. Norris, 483

Mass. 681, 687 (2019), quoting Commonwealth v. Fisher, 433 Mass.

340, 357 (2001). "[A]bsent counsel's failure to pursue some

obviously powerful form of impeachment available at trial, it is

speculative to conclude that a different approach to impeachment

10
would likely have affected the jury's conclusion." Fisher,

supra. See also Millien, 474 Mass. at 432 (defense

"substantial" under prejudice prong of Saferian "where we have a

serious doubt whether the jury verdict would have been the same

had the defense been presented").

The defendant maintains that counsel could have consulted

with and presented testimony by an expert on police use of force

and police procedures to demonstrate that the officers'

testimony was not credible. The defendant argues that his

proposed expert, a retired Connecticut police officer who

reviewed the surveillance video footage of the incident, would

have been able to discredit the officers' testimony by

demonstrating that the defendant's vehicle was blocked in and he

was unable to turn around to leave the area of the john's

arrest. Even assuming, arguendo, that the defendant's proposed

expert testimony would have been admissible, counsel's failure

to introduce it was not prejudicial, because the alleged

blocking of the defendant's vehicle prior to his arrest would

not have undermined or contradicted the evidence that he

resisted arrest. The evidence at trial allowed a jury to

conclude that, as officers attempted to handcuff the defendant,

he "used force to pull away from [the officers] so that he

couldn't be placed into handcuffs," "pushed his body back from

the car . . . and pulled his arms away from [the officers']

11
grasps." See Commonwealth v. Don, 483 Mass. 697, 707 (2019)

(defendant not prejudiced by counsel's failure "to present

expert testimony 'disproving' a particular factual scenario that

was not essential to the Commonwealth's theory of the case").

The defendant further contends that counsel was ineffective

for failing to cross-examine the officers regarding the

surveillance video footage of the incident or their compliance

with Worcester police policies. Trial counsel authenticated and

introduced the surveillance video footage of the incident

("Exhibit 2") during the defendant's direct examination.

Putting aside whether trial counsel could have introduced the

surveillance video footage earlier, such as during cross-

examination of the officers,9 the defendant has failed to

demonstrate with any reasoned argument, as opposed to conclusory

assertions, how doing so would have influenced the jury's

conclusion that he resisted arrest. Likewise, the defendant has

not demonstrated how any alleged violation of Worcester police

policies -- e.g., by failing to document the seizure of his cell

phone or file a use of force report for the wristlock technique

-- would have influenced the jury's conclusion that he resisted

arrest.

9 The judge told trial counsel that he would not allow counsel to
introduce and authenticate the video footage during cross-
examination of the Commonwealth's witnesses.

12
Nor did counsel render ineffective assistance by failing to

impeach Officer McGrath with a prior inconsistent statement he

made during a July 25, 2018 hearing on the defendant's traffic

citation. Officer McGrath testified at the citation hearing

that he activated his cruiser's siren and lights when he arrived

behind the defendant's vehicle. At trial, he testified that he

activated the cruiser's siren, but not the lights. Whether

Officer McGrath turned on his cruiser's lights when he

approached the scene was inconsequential and unlikely to have

influenced the jury's conclusion that the defendant resisted

arrest. See Fisher 433 Mass. at 357.

The defendant also argues that trial counsel should have

introduced a video recording taken by a rear exterior camera of

the police transport wagon because it demonstrated that he

appeared to be in pain; that he was cooperative; that officers

had an opportunity to double lock his handcuffs before loading

him into the wagon; and that two officers were not displaying

their police identification. Where the video footage has no

audio and shows a limited view of officers loading the defendant

into the wagon after they had already handcuffed him, we are not

persuaded that playing the video at trial was likely to provide

a substantial ground of defense to resisting arrest. Saferian,

366 Mass. at 96. On this record, we cannot say that it was an

abuse of discretion to deny the motion for a new trial.

13
Likewise, the defendant's argument that counsel was

ineffective for failing to introduce documentary evidence of his

injuries is unpersuasive. The medical records are from a

hospital visit on May 17, 2018, approximately three weeks after

the defendant's arrest, and the photographs the defendant took

of his wrists lack date or time stamps.10 Moreover, both

officers testified that it is common for individuals to

experience pain while handcuffed and explained that an arrestee

being noncompliant makes it "impossible" to double lock

handcuffs to prevent further tightening. In short, we cannot

conclude that the defendant was deprived of a substantial ground

of defense, and we have no "serious doubt whether the jury

10The only indication of the date each photo was taken is the
defendant's averment that he took them on May 3, 2018, and May
14, 2018, several days after his arrest on April 26, 2018.

14
verdict would have been the same" in the absence of counsel's

claimed failures. Millien, 474 Mass. at 432.11

Order denying motion for a
new trial affirmed.

By the Court (Neyman,
Desmond & Smyth, JJ.12),

Clerk

Entered: August 7, 2023.

11 We are likewise unpersuaded by the defendant's argument that
the judge abused his discretion by denying the motion without
conducting an evidentiary hearing. The judge is not required to
conduct an evidentiary hearing unless the defendant raises a
"substantial issue." Mass. R. Crim. P. 30 (c) (3), as appearing
in 435 Mass. 1501 (2001). "If, on the papers presented, the
basis of the motion is not 'credible' or 'persuasive,' an
evidentiary hearing accomplishes nothing." Commonwealth v.
Candelario, 446 Mass. 847, 859 (2006), quoting Commonwealth v.
Goodreau, 442 Mass. 341, 348-349 (2004). For the reasons
discussed supra, "the judge's finding that the defendant[] . . .
did not raise a substantial issue is entitled to substantial
deference, . . . and the judge could properly use his knowledge
and evaluation of the evidence at trial in determining whether
to decide the motion for a new trial without an evidentiary
hearing" (citation omitted). Commonwealth v. Amaral, 482 Mass.
496, 509 (2019). To the extent that we have not specifically
addressed subsidiary arguments in the parties' briefs, they have
been considered, and do not warrant further discussion. See
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
12 The panelists are listed in order of seniority.

15