Commonwealth v. Alejandro Santana.

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-599

COMMONWEALTH

vs.

ALEJANDRO SANTANA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In the early morning hours of December 30, 2020, the

victims, a husband and wife, were awoken by a noise inside their

home. The wife, assuming it was their cat, got out of bed and

saw two individuals inside her home walking towards her bedroom

wearing ski masks and holding what appeared to her to be rifles.

One of the intruders yelled at the victims and pointed a gun at

the wife's head. The husband charged at the other masked

individual. The intruders beat both victims with their guns.

The husband was able to push the bedroom door shut, and the wife

called 911. After the encounter, the husband found a shotgun

1As is our custom, we spell the defendant's name as it
appears in the indictments.
shell under a door in the area where he had fought with the two

intruders.

The defendant was convicted by a jury in the Superior Court

of entering a dwelling in the nighttime with the intent to

commit a felony while armed in violation of G. L. c. 266, § 18,

and of receiving a stolen motor vehicle in violation of G. L.

c. 269, § 28 (a). The defendant contends that the judge erred

in the admission of certain statements made by the coventurers

prior to and following the armed entry into the victims' home.

The defendant also claims error in the denial of his motion for

a required finding of not guilty. We affirm.

Discussion. 1. Statements of joint venturers. The

defendant takes issue with the admission of certain statements

made by participants in the crime both before and after the

armed entry into the victims' home. The first statement, which

was not objected to, was made by an unidentified member of the

group before the crime occurred. The group was discussing a

house, and the plan was "to go into a house to get some money,

to make some money." The defendant was participating in that

conversation. The second and third statements, which were

timely objected to, occurred as the group was leaving the crime

scene. One coventurer, Daniel Resende, said that he ended up

"involving himself in a fight with the old man" and another

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coventurer, Daniel Pedrosa, said that he "pulled the trigger but

the weapon was locked."

It is well settled that an exemption from the rule against

hearsay exists "whereby statements by joint venturers are

admissible against each other if the statements are made both

during the pendency of the cooperative effort and in furtherance

of its goal" (quotation and citation omitted). Commonwealth v.

Samia, 492 Mass. 135, 142 (2023). See Mass. G. Evid.

§ 801(d)(2)(E) (2021). In order to admit the statement of a

joint venturer, "the judge must make a preliminary

determination, based on a preponderance of the evidence, other

than the out-of-court statement itself, that the statement was

made during, and in furtherance of, a joint venture between the

declarant and the defendant" (quotation and citation omitted).

Commonwealth v. Robertson, 489 Mass. 226, 230-231 (2022). If

the judge admits the statements, the jury is then instructed

that it may consider the statements but only if they find that a

joint venture existed independent of the statements themselves,

and that the statements were made in furtherance of the joint

venture. See Commonwealth v. Rakes, 478 Mass. 22, 37 (2017).

"We review a judge's evidentiary ruling for abuse of

discretion." Commonwealth v. Brea, 488 Mass. 150, 159 (2021).

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The defendant contends that the judge erred in admitting

the statements because there was insufficient evidence that the

statements were made during a cooperative effort between the

defendant and the declarants. The defendant also contends that

the second and third statements, made after the crime occurred,

were narrative in nature and not made in furtherance of any

criminal venture. We are not persuaded by either of these

contentions.

The Commonwealth presented enough evidence, apart from the

statements themselves, that the defendant was part of a joint

venture to rob the victims' home. The defendant was friends

with the participants of the crime -- this was not a group of

strangers that the defendant happened to come upon who were

planning to break into a home to obtain cash. The evening began

at the defendant's home, and the defendant and his friends were

told that they all needed to leave. This prompted the defendant

and his friends to canvas the area in search of a car and money.

A short time later, the members of the group returned to the

defendant's home with a stolen van and a weapon. The group then

pooled their money to rent a hotel room. Once inside the hotel

room, the defendant participated with others in a conversation

about going into a home and getting money. It was during this

conversation that the defendant moved the stolen van away from

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the hotel room to the far corner of the parking lot and returned

to the hotel room wearing a face mask.

Next, the defendant drove with the others to the victims'

home where two of the participants, Daniel Resende and Daniel

Pedrosa, exited the van holding shotguns and wearing masks.

After the rest of the group headed toward the victims' home, the

defendant exited the van, walked up the street, and returned.

Shortly thereafter, several members of the group came back to

the van, running from the direction of the house. It was at

this time the second set of challenged statements were made.

Upon entering the van, Resende told the driver to leave quickly.

Resende and Pedroso then explained on the ride back that there

was a confrontation with an "old man" and that, during the

confrontation, Pedrosa attempted to fire his gun.

After the group returned to the hotel, the defendant left

and returned a short while later with a truck,2 which he parked

next to the van. Finally, less than twelve hours after the

armed entry, the defendant was stopped by the police driving the

truck. During the stop, police found two shotguns (one of which

later was discovered to contain deoxyribonucleic acid [DNA]

2 The owner of the truck testified that the truck was taken,
without his permission, from his driveway that night. He also
testified that he did not know the defendant or any of the
coventurers.

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matching the husband), shotgun ammunition, and a bag of spent

shotgun shells inside the cab of the truck.

Given the totality of this evidence, the judge acted within

his discretion in determining, by a preponderance of the

evidence, that the defendant was part of a joint venture to rob

the victims' home. There is no dispute that the first

statement, regarding going into a home to get cash, was made in

furtherance of the joint venture, and there was testimony

indicating the defendant participated in that conversation.

Thus, there was no error, much less a substantial risk of a

miscarriage of justice, in admitting the first statement. See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). As to the

second and third statements, made after the armed entry, those

statements were also made in furtherance of the crime. See

Commonwealth v. Winquist, 474 Mass. 517, 523 (2016) ("our

appellate courts thus far have deemed admissible statements made

by joint venturers during the so-called concealment phase of

their criminal enterprise when such phase is relatively close in

time to the commission of the crime"). The statements by

Resende and Pedroso were made while the group was leaving the

crime scene and established the need to get rid of the evidence

(the shotguns). Therefore, the judge likewise did not err in

the admission of the second and third statements.

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2. Sufficiency of the evidence. a. Armed entry. The

Commonwealth proceeded at trial on the theory that the defendant

aided and abetted the armed entry into the victims' home and

thus was guilty of the crime as a joint venturer. The defendant

argues that the evidence was insufficient to convict him of

either armed entry into a dwelling with the intent to commit a

felony or receiving a stolen motor vehicle. In reviewing the

denial of a motion for a required finding of not guilty, we must

determine "whether, after viewing the evidence in the light most

favorable to the [prosecution], any rational trier of fact could

have found [the defendant] to be criminally responsible beyond a

reasonable doubt." Commonwealth v. Cullen, 395 Mass. 225, 228

(1985). We have said that "[i]nferences drawn from

circumstantial evidence need not be inescapable or necessary, so

long as they are reasonable, possible and not unwarranted

because too remote. . ." (quotations and citation omitted). Id.

at 230.

The elements of the crime of entry into a dwelling during

the nighttime while armed with the intent to commit a felony are

as follows: (1) the premises entered was the dwelling of

another; (2) the defendant entered into the dwelling; (3) the

defendant was armed with a dangerous weapon; (4) the defendant

had the intent to commit a felony; and (5) the entry occurred in

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the nighttime. See G. L. c. 266, § 18. The defendant does not

challenge that there was sufficient evidence that Pedroso and

Resende, the two armed intruders, committed the armed entry.

Rather, he argues that there was insufficient evidence that he

aided and abetted the crime. To establish the defendant's guilt

as a joint venturer to the armed entry, the Commonwealth must

prove "beyond a reasonable doubt that the defendant knowingly

participated in the commission of the crime charged, alone or

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

Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009), abrogated in

part on other grounds by Commonwealth v. Britt, 465 Mass. 87, 99

(2013). We note that a defendant's presence at the scene of the

crime, general knowledge that a crime will be committed, or

association with the perpetrators of the crime, do not by

themselves sufficiently demonstrate a joint venture. See

Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 472 (2014).

Rather, the Commonwealth must introduce "additional evidence

which implicates the defendant in the crime." Commonwealth v.

Sepheus, 468 Mass. 160, 167 (2014), quoting Commonwealth v.

Saez, 21 Mass. App. Ct. 408, 411 (1986). This evidence may

include proof that codefendants acted in a "coordinated

fashion," Commonwealth v. McCray, 93 Mass. App. Ct. 835, 843

(2018), or that the defendant "agree[d] to stand by at, or near

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the scene of the crime to act as a lookout, or to provide aid or

assistance in committing the crime, or in escaping, if such help

[became] necessary" (citation omitted). Commonwealth v.

Simpkins, 470 Mass. 458, 462 (2015).

Here, examining as we must the evidence in the light most

favorable to the Commonwealth, for the reasons stated above,

there was sufficient evidence for a jury to find beyond a

reasonable doubt that the defendant knowingly and intentionally

participated in the armed entry into the victims' home. The

evidence, along with reasonable inferences therefrom, showed

that the defendant and others planned the armed entry into the

victims' home. The planning for the crime began when the

defendant and his friends were told that they needed to leave

his home. Thus, the group all shared a common motive -- the

need for quick cash. The defendant and others in the group went

into the Worcester area in search of a car and money and

returned later that evening with a stolen van and a weapon. The

group pooled their money and rented a hotel room, where the

defendant participated in the plan to break into a home and get

money. In fact, during the planning phase of the crime, the

defendant took the affirmative step of moving the stolen van

away from the hotel room to the far corner of the parking lot,

presumably to distance the group from the stolen van. When he

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returned to the hotel room, the defendant was wearing a face

mask. Next, the defendant left with the group in the stolen

van, which contained two shotguns. Two of the participants

exited the van with the shotguns in their arms, and the

defendant exited the van shortly thereafter and walked up and

down the street. After the crime, the defendant left the hotel

room and returned with another stolen vehicle (the truck). The

defendant, wearing rubber gloves, was stopped by the police

driving the stolen truck and two shotguns were found inside.

This evidence was more than sufficient for a rational jury to

find the defendant participated in the planning of the armed

entry into the victims' home, in its execution by acting as a

lookout, and in the disposal of the evidence.

b. Receiving a stolen motor vehicle. The defendant claims

that there was insufficient evidence to establish that he knew

that he was in possession of a stolen vehicle. The crime of

possession of a stolen motor vehicle under G. L. c. 266,

§ 28 (a), requires that "(1) the motor vehicle is stolen;

(2) the defendant possessed the motor vehicle; and (3) the

defendant knew that the motor vehicle was stolen." Commonwealth

v. Aponte, 71 Mass. App. Ct. 758, 760 (2008). The defendant

claims that there was insufficient evidence of the third

element, knowledge. Again, we disagree.

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In the light most favorable to the Commonwealth, the jury

could have found that, during the evening of December 29, 2020,

the defendant and his friends were told to leave the defendant's

home and subsequently went out to find money and a car. The

group, including the defendant, were in a stolen van a few hours

later. In the early morning hours of December 30th, the

defendant was driving his own vehicle when police stopped him

for driving without a valid license and towed his vehicle. Less

than two hours later, the defendant returned to the hotel in a

truck, taken without the owner's permission. That same

afternoon, police once again stopped the defendant as he was

exiting the driver's seat of the stolen truck, and he was

wearing black rubber nitrile gloves. When questioned by police,

the defendant said that a friend gave him the truck but that he

could not tell them the name of his friend. During further

questioning about driving a stolen truck with guns and

ammunition inside, the defendant acknowledged that the truck was

stolen and only denied knowing that the guns and ammunition were

present in the stolen truck.

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The evidence was more than sufficient to support the defendant's

conviction of receiving a stolen motor vehicle.

Judgments affirmed.

By the Court (Meade, Neyman &
Walsh, JJ.3),

Clerk

Entered: December 9, 2025.

3 The panelists are listed in order of seniority.

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