Commonwealth v. Michael Cepeda.

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

23-P-154

COMMONWEALTH

vs.

MICHAEL CEPEDA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of assault

and battery by means of a dangerous weapon and assault by means

of a dangerous weapon based on a theory of joint venture. 1 The

defendant appeals, arguing among other things that the evidence

was insufficient to prove that he knew that his coventurers were

armed with dangerous weapons (specifically, firearms) or that he

shared the intent to use the firearms. We agree and thus

reverse the judgments of conviction.

Background. We summarize the evidence, and the reasonable

inferences to be drawn therefrom, in the light most favorable to

the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671,

676-77 (1979). Between 11 and 11:30 P.M. on April 27, 2019,

1 The jury acquitted the defendant of armed assault with intent
to murder.
Juliana Alcantara and her stepbrother, Wasley Paulino, arrived

at a party in Lynn. The defendant arrived shortly thereafter

with codefendants Deylis Encarnacion and Geraldo Rojas. 2

Paulino's friend, Emmanuel Bello, was also at the party.

Sometime after midnight the party came to an abrupt end

when the fire alarm went off. Bello left the area in his car

but returned when Paulino, at Rojas's urging, called him for a

ride. Bello parked his car a short distance from the building,

and Alcantara and Paulino walked to meet him. Encarnacion,

Rojas, and two other men followed. The defendant walked in the

other direction to put what looked like audio equipment into a

car parked across the street, but ran over seconds later to join

the group following Alcantara and Paulino.

Precisely what occurred next was the subject of conflicting

testimony at trial and before the grand jury. 3 Alcantara

testified at trial that she was sitting in the rear passenger-

side seat of Bello's car when she heard Paulino say, "Not here,

2 Encarnacion was tried jointly with the defendant and was
convicted of armed assault with intent to murder, assault by
means of a dangerous weapon, assault and battery by means of a
dangerous weapon, and carrying a firearm without a license.
Rojas was tried separately and was convicted of a single charge
of carrying a firearm without a license. He was acquitted of
armed assault with intent to murder, assault by means of a
dangerous weapon, and assault and battery by means of a
dangerous weapon.
3 As discussed further below, certain grand jury testimony was

admitted as substantive evidence at trial.

2
my sister is in the car." The man to whom Paulino was speaking

was standing next to the rear passenger-side door, while another

man was pulling on the driver's door handle and telling Bello to

"get out of the car." Alcantara then heard three gunshots. One

shot hit her in the hand, and a second grazed her chin.

Although Alcantara never saw a gun, she identified the shooter

as the man who had been standing by the passenger-side door.

Paulino and Bello recalled the events somewhat differently

in their grand jury testimony. Paulino testified before the

grand jury that the defendant, Encarnacion, Rojas, and another

man "surrounded the car" after Alcantara had gotten in. Paulino

heard Encarnacion tell the defendant, "[G]o in front and try to

open the door." At some point both Encarnacion, who was

standing behind the car, and Rojas, who was standing on the

passenger side, took out guns and fired toward the car. As

Paulino described the sequence of events, "they surrounded the

car and started taking out weapons. I said, my sister is in the

car. . . . Michael [the defendant] wanted to open the door, and

then he was kind of in shock,[4] so [Bello] accelerated, and

that's when they shot."

4 Defense counsel argued in closing that "he" referred to the
defendant as the one in shock. Conversely, the prosecutor
argued that "he" referred to Bello.

3
Bello testified before the grand jury that four people

"started surrounding [his] car" but the only ones he could see

clearly were Encarnacion and a man with a pierced nose.

Contrary to Paulino's account, Bello recalled that Encarnacion

was standing in front of the car when he pulled out a gun and

pointed it at him. The man with the pierced nose was trying to

open Bello's door, 5 but Bello did not specify whether this was

before or after Encarnacion pulled out the gun. When Bello

started to drive away, Encarnacion "went to the side" and shot

twice into the car.

Immediately after the shooting, surveillance video captured

a group of five people fleeing the scene in the car that the

defendant had placed equipment in earlier. About three weeks

later, both Paulino and Bello identified the defendant from a

photographic array as the person who tried to open Bello's door

on the night of the shooting.

Discussion. The defendant's arguments on appeal center on

the admission of Paulino's and Bello's grand jury testimony.

The issue arose in the following manner. After the judge issued

bench warrants compelling Paulino and Bello to appear at trial,

they both testified to events leading up to the shooting but

5 Bello initially testified that the man with the pierced nose
had a "weapon" but, when asked whether the man had a "gun,"
replied that he "didn't see."

4
claimed not to recall the shooting itself. Following voir dire

examinations, the judge found that both witnesses were feigning

memory loss and allowed the Commonwealth to admit portions of

their grand jury testimony substantively as prior inconsistent

statements.

On appeal the defendant challenges the judge's rulings on

the ground that the admissions of the grand jury testimony

deprived him of a meaningful opportunity for cross-examination,

in violation of his right to confrontation. He also argues that

uncorroborated grand jury testimony cannot be the sole source of

support for an element of the crime and that the Commonwealth

presented no other evidence that he knew that either Encarnacion

or Rojas was armed. While it appears that there was no

confrontation clause violation, see Commonwealth v. Figueroa,

451 Mass. 566, 576-77 (2008); Commonwealth v. Silvester, 89

Mass. App. Ct. 350, 357 n.7 (2016), we need not decide that

issue, or whether the Commonwealth presented adequate

corroboration, because we agree with the defendant's alternative

argument that, even considering the grand jury testimony, the

evidence was insufficient to sustain the convictions.

Because the Commonwealth proceeded on a joint venture

theory, it had to prove that the defendant "knowingly

participated in the commission of the crime charged, alone or

with others, with the intent required for that offense."

5
Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). Where the

crime charged has possession of a weapon as an element, the

joint venturer must have "had knowledge that the principal

perpetrator had a weapon." Commonwealth v. Ellis, 432 Mass.

746, 762 (2000).

Here, the evidence does not support a finding beyond a

reasonable doubt that the defendant acted together with

Encarnacion and Rojas knowing that either had a gun and sharing

their intent to use one. There was sufficient evidence that the

defendant was at the scene and tried to open Bello's door while

the other men surrounded his car. But in the face of vague and

conflicting witness testimony, the jury could only speculate

that the defendant knew that his coventurers were armed. There

was no evidence that the defendant had such knowledge prior to

approaching Bello's car. And although the prosecutor argued in

closing that the defendant tried to open Bello's door "after

[Encarnacion] show[ed] the weapon," none of the witnesses

provided a clear timeline to that effect. Moreover, the

witnesses' accounts differed on facts bearing on the defendant's

knowledge and intent, such as which of the men were armed, who

fired the shots, and where the shooter or shooters were standing

in relation to the defendant. It was an impermissible

inferential leap for the jury to conclude from this evidence

that the defendant knew prior to the shooting that his

6
coventurers had guns and intended to use them. See Commonwealth

v. Walsh, 407 Mass. 740, 743-745 (1990) (jury could only have

speculated that defendant knew of and shared coventurer's intent

to stab victim where, although defendant was present at scene of

attack, there was no evidence he knew coventurer was armed until

after stabbing occurred); Commonwealth v. Clark, 363 Mass. 467,

473 (1973) (jury could not have inferred that defendant knew of

and shared intent to use gun produced by coventurer during drug

deal, where there was no evidence that defendant knew beforehand

that coventurer had gun and intended to use it).

We are not persuaded by the Commonwealth's contention that

other circumstantial evidence demonstrated the defendant's

knowledge of and shared intent to use a gun during the

commission of the crimes. Specifically, the Commonwealth points

to the significant amount of time that the defendant spent with

Encarnacion and Rojas at the party, their joint flight from the

scene, and the identification of the defendant as the person who

tried to open Bello's door. None of this evidence demonstrates

that the defendant knew that Encarnacion or Rojas had a gun or

that he took some step to help carry out their intent to use a

gun during the assault. While the evidence relied on by the

Commonwealth established a possibility that the defendant had

the requisite knowledge and intent, it did not allow the jury to

find those elements beyond a reasonable doubt. See Commonwealth

7
v. Gonzalez, 475 Mass. 396, 417-418 (2016); Walsh, 407 Mass. at

744-745. 6

The judgments are reversed, and the verdicts are set aside.

Judgment shall enter for the defendant.

So ordered.

By the Court (Rubin, Blake &
Shin, JJ. 7),

Assistant Clerk

Entered: March 4, 2024.

6 We decline to exercise our inherent authority to order entry of
judgments of conviction on the lesser included offenses of
assault and assault and battery because we are unable to
conclude that "the remaining untainted elements include all the
elements of [the] lesser included offense[s]." Commonwealth v.
Garrett, 473 Mass. 257, 266-267 (2015). We note that the
Commonwealth has not requested this alternative relief.
7 The panelists are listed in order of seniority.

8