Commonwealth v. Frank Mwaura.

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

25-P-433

COMMONWEALTH

vs.

FRANK MWAURA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the

defendant, Frank Mwaura, was convicted of rape. The defendant

appeals, claiming that the judge abused his discretion in

admitting a redacted recording of a 911 call, defense counsel

was ineffective, the admission of a substitute analyst's opinion

testimony violated his confrontation clause rights under the

Sixth Amendment to the United States Constitution and art. 12 of

the Massachusetts Declaration of Rights, and the judge

considered improper factors at sentencing. We affirm.

Background. On October 3, 2015, the victim attended a

friend's birthday party at a restaurant and later the group

gathered at the defendant's apartment. The victim had been
drinking alcohol prior to the party and continued to drink

throughout the night. At the defendant's apartment, the victim

fell asleep on a couch in the living room and then was moved

onto a futon in a different room to "sleep it off." B.W., who

is a nurse, checked on the victim periodically.

Later that night, B.W. and another guest, A.M., opened a

door looking for B.W.'s coat. B.W. "saw thrusting motion on the

couch," and closed the door quickly believing it was one of the

couples at the party. When she realized that it was the room

the victim had been in, she reopened the door. A.M. saw the

defendant, with his pants down, "on top of" the victim, who was

half naked and not awake. The defendant then got up and slammed

the door shut. When they were able to open the door again, B.W.

saw that the defendant's "pants were down to his ankles."

After the defendant left the room, B.W. tried to help the

victim; she was unable to wake her. During this time, A.M.

called 911. Police officers arrived and were met by

approximately fifteen people. Officer Jessica Cortes saw that

the victim was "unconscious, passed out, laying partially on her

side face down." She saw that the victim's dress was pulled

down, exposing her breasts, and had also been pulled up, and was

"barely covering [the victim's] bottom." She also saw the

victim's undergarments on the floor. Cortes tried to wake the

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victim by yelling and shaking her but was unsuccessful.

Paramedics arrived and were also unable to wake the victim.

The victim testified that the next thing she recalled after

arriving at the defendant's apartment, was waking up in the

hospital. At the hospital, she underwent a sexual assault nurse

examiner examination (exam). The exam has a standardized kit

with envelopes to collect samples and can take three to eight

hours to complete. The nurse who conducted the exam explained

that she determines what samples need to be collected by asking

the patient what happened. Here, the nurse collected all the

samples available in the exam kit "because [the victim] really

didn't have a memory of what happened." After completing the

exam, the nurse notified the police who took possession of the

kit.

The kit was then submitted to the Massachusetts State

Police crime lab (lab) for testing. Kelley King, a forensic

scientist, testified that she begins the testing process by

reading the incident report to develop a testing plan of "what

items [she is] going to examine and what [she is] going to

examine them for." Here, King planned to test the "vaginal

swabs, the external genital swabs, the anal rectal swabs, . . .

peri-anal swabs and the oral swabs," for sperm cells. Sperm

cells were found on the vaginal swabs, external genital swabs,

and the anal rectal swab. The peri-anal swabs were ultimately

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not tested because of the assumption that those swabs would

offer the same results as the anal rectal swab. King then

preserved the vaginal swab sample and the anal rectal swab

sample for deoxyribonucleic acid (DNA) analysis.1

Kathleen Gould, a technical reviewer in the lab's DNA unit,

reviewed DNA analysis on the vaginal swabs and the anal rectal

swabs. The technical reviewer's responsibility is to "ensure

that the results and conclusions are scientifically support[ed]

by the data." Gould reviewed the "testing procedure for both

the vaginal swab and anal rectal swabs through quantitation,"

which is a "measurement that estimates how much DNA was

recovered from the extraction."2 She also reviewed the STR3

analysis for the anal rectal swabs through detection, where the

DNA is separated and assigned certain identifying numbers so the

DNA profile can then be compared to the DNA profile of a known

individual. DNA profiles were generated for the victim and the

defendant for comparison to the DNA profile on the anal rectal

swab.

1 DNA analysts compare a DNA profile from an item of
evidence to the DNA profile of a known individual "to determine
if that person may have been the source of that DNA."

2 Extraction is "where heat and chemicals are used to . . .
break open the cells to release the DNA."

3 STR analysis is "conventional DNA testing that detects
both male and female DNA."

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Two DNA profiles were found from the anal rectal swab: a

sperm fraction and a non-sperm fraction. In the sperm fraction,

a "male DNA profile was obtained and that profile matched the

profile of [the defendant]." The expected frequency of the

"occurrence of this DNA profile is approximately 1 in 11.17

sextillion unrelated individuals." Diane Biagiotti, the DNA

analyst who analyzed the vaginal swab, also found that the DNA

profile for the sperm fraction matched the defendant's DNA

profile. The expected frequency of occurrence of this YSTR

profile was "approximately 1 in 1,337 male individuals."4

Discussion. 1. 911 call. Prior to trial, a hearing was

held on motions in limine filed by the parties. As relevant

here, the judge allowed the Commonwealth's motion to admit the

recording of A.M.'s 911 call in evidence, with some redactions.

Defense counsel objected to the admission of the recording at

the motion hearing and again before it was played during trial.

On appeal, the defendant argues that the judge abused his

discretion in admitting the 911 call because "much of the

content was cumulative, overly prejudicial, and highly

inflammatory." "Whether evidence is relevant and whether its

probative value is substantially outweighed by its prejudicial

4 Biagiotti testified that she used "YSTR testing," a
variation of DNA profiling often used where there is "a
considerable amount of female DNA and a smaller amount of male
DNA."

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effect are matters entrusted to the trial judge's broad

discretion and are not disturbed absent palpable error."

Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting

Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001).

"When assessing whether the risk of unfair prejudice
outweighs the probative value of the challenged evidence,
the factors a reviewing court considers may include
(1) whether the trial judge carefully weighed the probative
value and prejudicial effect of the evidence introduced at
trial . . . ; (2) whether the judge mitigated the
prejudicial effect through proper limiting instructions
. . . ; (3) whether the challenged evidence was cumulative
of other admissible evidence, thereby reducing the risk of
any additional prejudicial effect . . . ; and (4) whether
the challenged evidence was so similar to the charged
offense as to increase the risk of propensity reasoning by
the jury."

Commonwealth v. Peno, 485 Mass. 378, 386 (2020).

Here, the judge excluded several statements from the 911

call,5 demonstrating that he "carefully weighed the probative

value and prejudicial effect of the evidence introduced at

trial." Peno, 485 Mass. at 386. Additionally, it was not

improper for the judge to admit the recording due to it being

"cumulative." "[T]he prejudicial effect of cumulative

spontaneous utterance evidence is mitigated where the person who

made the out-of-court statements testifies at trial and is

subject to cross-examination about her prior statements."

5 The judge excluded the statement that the defendant was
"basically raping [the victim]," and the statements of the 911
operator "that's awful." Other portions of the 911 call were
excluded as cumulative and "bordering on investigative."

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Commonwealth v. Davis, 54 Mass. App. Ct. 756, 764 (2002). What

is more, the recording was corroborative of A.M.'s testimony and

therefore it "did not create a risk of unfair prejudice because

[A.M.] was subject to cross-examination about those statements."

Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 9 (2019). In sum,

the judge properly balanced the prejudicial effect of the

proposed evidence against its probative value, and we see no

palpable error. See Sylvia, 456 Mass. at 192.

2. Ineffective assistance of counsel. The defendant

argues that defense counsel's failure to object to evidence of

anal penetration was "deficient performance" and "resulted in

material prejudice." When attempting to establish a claim of

ineffective assistance of counsel, a defendant "bears the burden

of proving entitlement to a new trial by showing that the

behavior of counsel fell below that of an ordinary, fallible

lawyer and that such failing 'likely deprived the defendant of

an otherwise available, substantial ground of defence.'"

Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974).

Here, the claim is presented in its "weakest form," as it

is asserted for the first time on direct appeal (citation

omitted). Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).

See id. at 810 ("preferred method for raising a claim of

ineffective assistance of counsel is through a motion for a new

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trial"). Where the defendant raised the claim in this way, he

will be entitled to relief only "when the factual basis of the

claim appears indisputably on the trial record." Commonwealth

v. Davis, 481 Mass. 210, 223 (2019), quoting Commonwealth v.

Gorham, 472 Mass. 112, 116 n.4 (2015).

Notwithstanding, where the defense strategy at trial was

not that the defendant did not penetrate the victim with his

penis, but that he was too intoxicated himself to form the

mental state required to commit the crime of rape, we could

discern strategic reasons for defense counsel's failure to

object. Because the record is not developed on this point, we

are unable to discern the basis for defense counsel's failure to

object, however, and the defendant's ineffective assistance

claim therefore fails. See Zinser, 446 Mass. at 811-812.

Moreover, the claim would have failed as the objection

would have been futile. See Commonwealth v. Collins, 470 Mass.

255, 261 (2014) (failure to make futile objection is not

ineffective). Testimony regarding uncharged acts is permissible

where such acts are "inextricably intertwined" with the

description of the events forming the basis on which the

defendant was charged. Commonwealth v. Fernandes, 492 Mass.

469, 484 (2023), quoting Commonwealth v. Bryant, 482 Mass. 731,

734 (2019). Here, the evidence of anal penetration was part of

a single course of conduct and therefore was part of the

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description of the charged conduct, thus it was permissible for

the Commonwealth to present this evidence. See Commonwealth v.

Samia, 492 Mass. 135, 148 (2023) ("Commonwealth is entitled to

'show the whole transaction of which the crime was a part'"

[citation omitted]).

3. Substitute analyst. At trial, defense counsel objected

to the technical reviewer's, Gould's, testimony, arguing that

Gould was a "substitute witness," and that the prosecutor did

not give notice of the Commonwealth's intention to rely on a

substitute expert witness. On appeal, relying on Smith v.

Arizona, 602 U.S. 779 (2024), the defendant argues that Gould's

testimony violated his confrontation clause rights under the

Sixth Amendment to the United States Constitution and art. 12 of

the Massachusetts Declaration of Rights.6 Assuming, without

6 The Supreme Judicial Court recently interpreted Smith in
Commonwealth v. Gordon, 496 Mass. 554 (2025). In Smith, a
"substitute expert gave an opinion identifying the controlled
substance. The substitute expert performed the technical and
administrative reviews of the original analyst's work . . . .
[T]he substitute expert testified to the contents of the
analyst's notes. . . . [T]he substitute expert's opinion . . .
'merely replicate[d], rather than somehow buil[t] on, the
testing analyst's conclusions." Gordon, supra at 555, quoting
Smith, 602 U.S. at 798-799. The United States Supreme Court
concluded that if the absent analyst's statements were being
offered for their truth and were testimonial, their admission
violated the confrontation clause. See Smith, supra at 783.
Applying Smith, the Supreme Judicial Court concluded in Gordon
that the absent analyst's statements were testimonial and the
"substitute expert's opinion founded on the truth of the absent

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deciding, that it was error for Gould to testify as to the

original analyst's results, we conclude that any error was

harmless beyond a reasonable doubt. This is because there was

ample evidence, apart from Gould's testimony, from which the

jury could have found that the defendant penetrated the victim

with his penis and that he was aware that the victim was not

capable of consenting to his doing so.

"An error may be considered harmless when other properly

admitted evidence of guilt is so 'overwhelming' as to nullify

any effect that the improperly introduced evidence might have

had on the outcome" (citation omitted). Commonwealth v. Ramsey,

466 Mass. 489, 494 (2013). In evaluating whether the admission

of evidence was harmless beyond a reasonable doubt,

"we examine factors such as 'the importance of the evidence
in the prosecution's case; the relationship between the
evidence and the premise of the defense; who introduced the
issue at trial; the frequency of the reference; whether the
erroneously admitted evidence was merely cumulative of
properly admitted evidence; the availability or effect of
curative instructions; and the weight or quantum of
evidence of guilt.'"

Id., quoting Commonwealth v. Mendes, 463 Mass. 353, 359 (2012).

"To prove the defendant guilty of rape, the Commonwealth

had to show that the defendant compelled the victim to submit to

sexual intercourse by force or threat of force and against the

analyst's statements, was not harmless beyond a reasonable
doubt." Gordon, supra at 556.

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victim's will." Commonwealth v. Gibson, 488 Mass. 854, 857

(2022), citing G. L. c. 265, § 22 (b). The Commonwealth may

establish force by proving penetration and that "the defendant

knew or reasonably should have known that the victim lacked the

capacity to consent." Gibson, supra. Where the victim "lacks

the capacity to consent, the Commonwealth 'has no obligation to

prove the use of force by the defendant beyond what is required

for the act of penetration.'" Id., quoting Commonwealth v.

Blache, 450 Mass. 585, 594 (2008).

Under the unusual circumstances presented here, where there

were eyewitnesses to the assault, the element of penetration can

be inferred. See Gibson, 488 Mass. at 857. Specifically, when

B.W. and A.M. opened the door to the room the victim was in,

A.M. saw "movement," and the defendant with his pants down "on

top of" the victim. A.M. also saw that the victim was "half

naked" and "not moving." B.W. saw a "thrusting motion on the

couch," and that the defendant's pants were "down to his

ankles." Additionally, Cortes saw that the victim's dress was

pulled down, exposing her breasts, and had also been pulled up,

and was "barely covering [the victim's] bottom." She also saw

the victim's undergarments on the floor. These facts could lead

a reasonable jury to conclude that the defendant penetrated the

victim. See id.

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Moreover, the Commonwealth did not solely rely on Gould's

testimony to prove that penetration occurred beyond a reasonable

doubt. "An assertion [of harmless error] . . . is most

particularly vulnerable where the over-all strength of the

Commonwealth's case radiates from a core of tainted evidence"

(citation omitted). Commonwealth v. Muniz, 456 Mass. 166, 169

(2010). The testimony of the analyst who tested the vaginal

swab is not at issue here. Biagiotti testified to how she

conducted the DNA analysis of the vaginal swab and concluded

that the DNA profile of the sperm fraction matched the

defendant's profile. Therefore there was ample evidence

presented by the Commonwealth to prove penetration.

The defendant argues that Gould's testimony "undermined the

defense theory" that he was too intoxicated to understand

whether the victim was able to consent. However, based on

eyewitness observations, a reasonable jury could have concluded

that the defendant knew or reasonably should have known the

victim was unable to consent. When A.M. and B.W. asked the

defendant what he was doing, he tried to push them out of the

room and said he was not doing anything. When the pair was able

to reopen the door after the defendant slammed it shut, he "ran

out of the room." The arresting officer testified that the

defendant said "arrest me" several times and saw that he did not

have trouble standing up nor did he have slurred speech. A

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reasonable jury could have concluded that the Commonwealth had

met its burden of proving the elements of the crime even without

Gould's testimony, and we are satisfied that Gould's testimony

did not affect the verdict. See Ramsey, 466 Mass. at 494.

4. Sentencing. We review a sentence "to determine whether

it is unconstitutional." Commonwealth v. Perez, 477 Mass. 677,

682 (2017), S.C., 480 Mass. 562 (2018). "We do not review the

judge's discretion but inquire only whether the sentence was

tainted by error of law." Commonwealth v. Vega, 54 Mass. App.

Ct. 249, 250 (2002). Here, we discern no such error.

The defendant contends that his sentence should be vacated

because the "judge's comments [during the sentencing hearing]

suggest consideration of improper factors." The defendant was

sentenced to from nine to eleven years, which was more than the

range suggested by the sentencing guidelines. The judge

explained why he exceeded the guidelines at the hearing noting

the "violent nature of . . . a penile/vaginal penetration"

assault, the "cruelty of this rape, the victim being especially

vulnerable by circumstances, and the defendant violently

imposing his will on a defenseless victim." The defendant

argues that the judge's remarks "suggest he based his decision

on personal feelings and emotions generated by the case," and

therefore, the sentence should be vacated.

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However, "[w]e do not read these remarks as reflecting

anything other than a consideration of [the] 'nature of the

offense and the circumstances surrounding the commission of the

crime,'" which are permissible factors to consider.

Commonwealth v. Dora, 57 Mass. App. Ct. 141, 149 (2003), quoting

Commonwealth v. Coleman, 390 Mass. 797, 805 (1984).

Additionally, the judge gave a lesser sentence than the

prosecutor requested, suggesting that the judge did not make the

decision based on his personal feelings and emotions. See

Commonwealth v. Oquendo, 83 Mass. App. Ct. 190, 195 (2013). For

these reasons, the sentence was not unconstitutional.

Judgment affirmed.

By the Court (Blake, C.J.,
Hand & Toone, JJ.7),

Clerk

Entered: January 15, 2026.

7 The panelists are listed in order of seniority.

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