Commonwealth v. Levon Pires.

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-935

COMMONWEALTH

vs.

LEVON PIRES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted by a District Court jury of

carrying a loaded firearm without a license, G. L. c. 269,

§ 10 (n), and carrying a firearm without a license, G. L.

c. 269, 10 (a). On appeal, the defendant contends that his

motion to suppress should have been allowed and that the trial

judge committed error by allowing the Commonwealth to introduce

evidence that a shooting had taken place in the area near the

defendant's home the day prior to the defendant's arrest and

certain video evidence. We affirm.

Motion to suppress. "[W]e accept the judge's subsidiary

findings of fact absent clear error but conduct an independent

review of [the judge's] ultimate findings and conclusions of
law" (quotation and citation omitted). Commonwealth v. Meas,

467 Mass. 434, 440 (2014), cert. denied, 574 U.S. 858 (2014).

We summarize the facts as found by the judge, supplemented by

undisputed facts that the judge implicitly credited and are

consistent with his ruling. See Commonwealth v. Depiero, 473

Mass. 450, 452 n.3 (2016); Commonwealth v. Jones-Pannell, 472

Mass. 429, 431 (2015). In addition, we review de novo the

surveillance recordings and other documentary exhibits

introduced in evidence at the hearing. See Commonwealth v.

Tremblay, 480 Mass. 645, 656 (2018).

The judge found that Detective Almeida of the New Bedford

police department, after seeing the defendant, got out of his

vehicle and approached the defendant. Almeida was wearing plain

clothes with a police vest with white lettering, and his firearm

was holstered. Almeida said, "What's good Levon?" and the

defendant ran. Almeida began to run after the defendant.

Seconds later, Almeida saw the defendant with a gun and a

magazine attached to the gun. At that time, Almeida sent a

radio transmission stating, "[H]e's got a gun," and also yelled

at the defendant to "drop the gun." The defendant was

ultimately apprehended and arrested.

Because suppression is limited to evidence recovered due to

an unconstitutional search or seizure, we must consider when the

seizure occurred and whether it was constitutional. See

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Commonwealth v. Palmer, 106 Mass. App. Ct. 47, 53, 55 (2025).

"To decide whether a person has been 'seized' in the

constitutional sense, 'we look at the totality of the

circumstances to determine whether a member of law enforcement

has "engaged in some show of authority" that a reasonable person

would consider coercive; that is, behavior "which could be

expected to command compliance, beyond simply identifying

[himself or herself] as police."'" Id. at 53, quoting

Commonwealth v. Matta, 483 Mass. 357, 362 (2019). Pursuit by

the police is not necessarily a seizure. "[T]he inquiry must be

whether, in the circumstances, a reasonable person would believe

that an officer would compel him or her to stay." Matta, supra

at 363. "[F]ollowing a person, presumably at a rate of speed

sufficient to keep him in sight, does not amount to a seizure

absent some additional assertion of authority, by direct verbal

communication ('stop') or otherwise (blocking, use of

flashers)." Commonwealth v. Franklin, 456 Mass. 818, 822

(2010).

Almeida's pursuit of an already running defendant did not

immediately constitute a seizure, as there was no evidence of

"some additional assertion of authority" or even that the

defendant knew Almeida was chasing after him. Id. The judge

found that the defendant never looked back and that the evidence

did not show that the defendant was aware that he was being

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pursued. We agree with the motion judge that once Almeida

commanded the defendant to "drop the gun," a seizure occurred.

Furthermore, the seizure was constitutional, as it was

supported by a reasonable suspicion that the defendant was

unlawfully carrying a firearm without a license. See

Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).

"Reasonable suspicion may not be based on good faith or a hunch,

but on specific, articulable facts and inferences that follow

from the officer's experience." Id. "The test is an objective

one" (citation omitted). Id. At the time the pursuit began,

and prior to seeing the defendant with the firearm, Almeida had

entered the defendant's name into the Criminal Justice

Information System database and had learned that the defendant

did not have a Massachusetts license to carry firearms. Thus,

at the time Almeida saw the defendant with a firearm and

commanded him to drop the gun, there was not only reasonable

suspicion to stop the defendant but also probable cause to

believe that he was committing a crime.1 The motion to suppress

was properly denied.

1 The defendant contends that the judge found that Almeida
saw the defendant's firearm prior to running after him, and that
this finding was clearly erroneous. As Almeida did not seize
the defendant until he commanded the defendant to "drop the gun"
and the seizure was constitutional, we need not analyze the
defendant's contention.

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Trial evidentiary rulings. The defendant argues that the

evidence that a person had been shot the day before "in the

South End" where the defendant lived was improperly admitted

prior bad act evidence. Additionally, the defendant contends

that the evidence posed a risk of unfair prejudice greater than

the evidence's probative value. Because the defendant preserved

these issues via objection at trial, "we review the proceedings

below for prejudicial error" and note that "[a]n error is not

prejudicial if it did not influence the jury, or had but very

slight effect" (citations and quotation omitted). Commonwealth

v. Rodriguez, 92 Mass. App. Ct. 774, 780 (2018).

No prejudicial effect is apparent here. Video evidence

admitted at trial clearly shows the defendant throw a glittery

object over the fence in the same area where the police

testified to finding a gun. Therefore, even if admission of the

prior shooting was error, we conclude that the defendant was not

prejudiced. See Commonwealth v. Imbert, 479 Mass. 575, 587

(2018) (finding no prejudice where issue was collateral to

defendant's guilt and "likely did not matter to the jury's

verdict").

Furthermore, evidence of the prior shooting was admissible

to provide the jury with background information to understand

the reason why the police were monitoring certain online

activity. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992).

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"Police are entitled to explain the motivations for their

conduct in carrying out an investigation," Commonwealth v.

Tanner, 66 Mass. App. Ct. 432, 438 (2006), and it is within the

"sound discretion of the trial judge" to determine "relevance,

probative value, and prejudice," Commonwealth v. West, 487 Mass.

794, 805 (2021).

The evidence of the prior shooting was highly relevant for

the jury to understand why the police monitored a Snapchat

account and what led the police to place the defendant under

surveillance. Certainly, a request for a limiting instruction

by the Commonwealth or the defendant would have been the better

course. See Commonwealth v. Peno, 485 Mass. 378, 395-396 (2020)

(noting value of contemporaneous limiting instruction in

mitigating risk of prejudice); Commonwealth v. Bryant, 482 Mass.

731, 735 (2019) (effectiveness of limiting instructions should

be considered in balancing probative value versus unfair

prejudice); Commonwealth v. Almeida, 479 Mass. 562, 569 (2018)

(limiting instruction to jury both when prior bad act evidence

was introduced and in final charge minimized prejudicial effect

from admission). But even without a limiting instruction, we

conclude that the judge properly weighed the probative value of

the evidence against the prejudice to the defendant. While the

judge admitted the evidence of the prior shooting, the judge did

not permit the Commonwealth to introduce evidence that the

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defendant was "an alleged associate" of the person who was shot

the day before. See West, 487 Mass. at 807. We discern no

error.

We further note that the defendant's characterization of

this evidence as prior bad act evidence is inapt. Prior bad act

evidence is necessarily tied in some manner to the defendant.

See, e.g., Commonwealth v. Lora, 494 Mass. 235, 246 (2024)

(analyzing as prior bad act evidence social media posts

"referenc[ing], albeit vaguely, past actions by the defendant

that suggest involvement in misconduct"). As the defendant

concedes, "there was no connection between the evidence of the

prior shooting and [the defendant]." And once admitted, the

Commonwealth limited its use of the evidence to the purpose of

explaining the police conduct. Cf. Commonwealth v. Bregoli, 431

Mass. 265, 278 (2000), citing Commonwealth v. Johnson, 412 Mass.

318, 321-324 (1992) ("prosecutor may not present to jury

evidence admitted for limited purpose as if it were substantive

evidence"). Furthermore, to the extent it is more probative

than prejudicial, prior bad act evidence is only inadmissible if

demonstrating a defendant's bad character or propensity to

commit the charged crime. See Commonwealth v. Crayton, 470

Mass. 228, 249 (2014); Mass. G. Evid. § 404(b)(1) (2025). Here,

we discern nothing in the record suggesting that the evidence of

the prior shooting was admitted for either purpose.

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Lastly, we reject the defendant's contention that the video

evidence was not properly authenticated. A video recording can

be authenticated by "having an eyewitness testify that the video

is a fair and accurate representation of what he [or she] saw on

the day in question." Commonwealth v. Connolly, 91 Mass. App.

Ct. 580, 586 (2017). During direct examination, while Almeida

viewed the video evidence, he provided testimony identifying the

setting, the defendant, and the police officers portrayed in the

video recording, and confirmed that it was a "fair and accurate"

representation of what occurred at that location on the day in

question. The video evidence was properly authenticated.

Judgments affirmed.

By the Court (Neyman,
D'Angelo & Allen, JJ.2),

Clerk

Entered: January 6, 2026.

2 The panelists are listed in order of seniority.

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