Commonwealth v. Hector Samuel Pedroza.

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-411

COMMONWEALTH

vs.

HECTOR SAMUEL PEDROZA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from orders of a Superior Court judge

denying his motion for a new trial and reconsideration of that

denied motion. We affirm.

Background. In 2012, a grand jury indicted the defendant

on three counts of rape of a child, G. L. c. 265, § 23. The

victim in each instance was the defendant's niece.

Approximately two years later, a Superior Court jury found the

defendant guilty of the crimes alleged in the first indictment -

- rapes "on diverse dates between June 5, 1989[,] and August 17,

1993" -- and acquitted him on the two remaining indictments.

The defendant timely filed a direct appeal from his conviction,

arguing, inter alia, that the judge erred by excluding evidence
of the victim's prior inconsistent statements -- specifically,

statements that she had been sexually abused by a different

uncle.1 See Commonwealth v. Pedroza, 90 Mass. App. Ct. 1118 n.2

(2016). In 2016, a panel of this court issued an unpublished

decision under our former rule 1:28 affirming the defendant's

conviction. Id. In 2017, the defendant's petition for further

appellate review was denied. See Commonwealth v. Pedroza, 476

Mass. 1112 (2017).

In 2022, the defendant filed a motion for a new trial. The

motion judge, who did not preside over the defendant's trial,

declined to hold an evidentiary hearing on the motion.

Nevertheless, the judge did hear arguments and review the

parties' submissions before denying the defendant's motion in a

detailed written memorandum. The defendant moved for

reconsideration and, when that motion was denied, filed this

appeal from the judge's rulings on both motions. Reviewing the

defendant's substantive arguments de novo, see Commonwealth v.

Bastos, 103 Mass. App. Ct. 376, 382 (2023), citing Commonwealth

v. Watkins, 486 Mass. 801, 804 (2021), and the denial of his

request for an evidentiary hearing for a significant error of

1 The defendant also argued that the trial judge erred in
admitting substitute first complaint testimony from the victim's
brother, and that the prosecutor's closing argument included
improper vouching. See Commonwealth v. Pedroza, 90 Mass. App.
Ct. 1118 (2016).

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law or other abuse of discretion, see Commonwealth v. Upton, 484

Mass. 155, 162 (2020), we affirm.

Discussion. 1. Ineffective assistance of counsel.

Reviewing the record under the familiar standard set forth in

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974),2 we are not

persuaded that trial counsel's failure to impeach the victim

with her prior inconsistent statements amounted to ineffective

assistance in this case. See Commonwealth v. Aspen, 85 Mass.

App. Ct. 278, 279 n.4 (2014), quoting Commonwealth v. Fisher,

433 Mass. 340, 357 (2001). Although trial counsel may be

ineffective based on a "failure to pursue some obviously

powerful form of impeachment," Fisher, supra, the defendant has

not persuaded us that that exception applies here.

At trial, defense counsel sought leave to cross-examine the

victim regarding statements she made to the police identifying

the defendant's brother as the perpetrator of two of the crimes

the defendant was charged with. As a panel of this court

concluded in its decision affirming the defendant's convictions,

the trial judge did not foreclose the defendant from using those

2 To prove ineffective assistance of counsel, a defendant is
required to show (1) "serious incompetency, inefficiency, or
inattention of counsel -- behavior of counsel falling measurably
below that which might be expected from an ordinary fallible
lawyer," and (2) that this deficiency "likely deprived the
defendant of an otherwise available, substantial ground of
defence." Saferian, 366 Mass. at 96.

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statements, but "ruled that the elicitation of the requested

evidence would entitle the Commonwealth to introduce additional

statements by the victim that she had been sexually abused by

both individuals." Pedroza, 90 Mass. App. Ct. 1118.

Thereafter, "[t]he defendant did not seek to elicit the evidence

of prior inconsistent statements," which was a decision we

inferred was both tactical and "a rational strategic approach."

Id. at n.2.

We reach a similar conclusion here.3 Although the defendant

contends that the evidence of the victim's prior inconsistent

statements was potential "dynamite," and that trial counsel's

failure to use such powerful evidence could only be the result

of a misunderstanding of the judge's ruling or a manifestly

unreasonable strategic decision, we are not persuaded. The

judge's ruling was made on the record and was clearly explained,

and defense counsel expressed no confusion about it.4 Moreover,

3 Reviewing the briefing in the underlying appeal, we are
not convinced that any claim of ineffective assistance of
counsel was "actually litigated," such that direct estoppel
would preclude our consideration of the defendant's ineffective
assistance claim here. See Commonwealth v. McDermott, 493 Mass.
403, 419 n.8 (2024) (when prior appeals resolve narrow issues,
that does not estop defendants from arguing broader questions in
subsequent appeals).

4 Where the complete transcripts of the trial were filed as
part of the defendant's direct appeal in this court, we take
judicial notice of them. See Commonwealth v. Robertson, 489
Mass. 226, 240 n.11 (2022).

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the defendant did not support his motion for a new trial with an

affidavit of his trial counsel.5

The burden is on the defendant to demonstrate that trial

counsel's conduct fell below accepted standards of practice.

See Saferian, 366 Mass. at 98-99 (holding that defendant did not

sufficiently establish case of ineffective assistance). Here,

the record does not permit us to determine whether the counsel's

failure to impeach the victim with her prior inconsistent

statements was an oversight, or whether it was a tactical

decision; if it were the latter, however, we are not persuaded

that the decision was manifestly unreasonable.6

5 In support of his 2023 motion to reconsider the denial of
his motion for a new trial, the defendant did include a 2015
affidavit of trial counsel. In that affidavit, counsel averred
that the judge "denied" him the opportunity to use the victim's
prior inconsistent statements. We give that affidavit little
weight, however, as it is evident from the docket that the
affidavit was prepared in connection with the parties' attempts
to reconstruct the trial record and not for the purpose of
supporting the defendant's ineffective assistance claim raised
nearly seven years later.

6 Indeed, if defense counsel had used the victim's prior
inconsistent statements to impeach her, the judge would have
almost certainly permitted the prosecution to rehabilitate the
victim. This would have likely involved the prosecutor using
evidence that the defendant and the other perpetrator were
sexually abusing the victim in similar ways during the same
periods of time, including when both men were living with the
victim's family in Massachusetts. Accordingly, we consider it
entirely reasonable that defense counsel would decide not to
impeach the victim using these statements.

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2. Specific unanimity instruction. The defendant was

convicted on the first indictment, which charged him with rape

of a child "on diverse dates" between June 5, 1989, and August

17, 1993. He was acquitted on the remaining two indictments.

The judge instructed the jury, sua sponte:

"[T]he Commonwealth alleges that the conduct occurred on
diverse dates between two dates. You may find the
defendant guilty only if you are all unanimously agreed
that the Commonwealth has proved beyond a reasonable doubt
that the defendant committed the offense on at least one
specific occasion during the alleged time period. It is
not necessary for the Commonwealth to prove, or for you all
to agree, that the offense was also committed on other
occasions. However, you must be unanimously agreed that
the Commonwealth has proved that the defendant committed
the offense on at least one specific occasion during the
time period alleged in the indictment."

The judge's instruction was an accurate statement of the law.7

See, e.g., Commonwealth v. Shea, 467 Mass. 788, 798 (2014),

quoting Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995)

("specific unanimity instruction indicates to the jury that they

must be unanimous as to which specific act constitutes the

offense charged"). Although the defendant now contends that the

instruction would have been clearer if the judge had used

different phrasing, the defendant's speculation that "[s]ome

jurors may have [misunderstood] the instruction" lacks support

in the record and does not amount to error in the instruction.

7 It also tracked the model instruction on specific
unanimity. See Criminal Model Jury Instructions for Use in the
District Court, Instruction 2.320 (2013).

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3. Correctness of prior appeal. As stated, after this

court previously affirmed the defendant's conviction on direct

appeal, the defendant applied unsuccessfully for further

appellate review. To the extent that his motion for a new trial

seeks to relitigate the same issues decided in his direct

appeal, he is estopped from doing so. See Sena v. Commonwealth,

417 Mass. 250, 260 (1994) (defendants are precluded from

relitigating issues "actually litigated" in earlier actions,

determined by "final judgment[s] on the merits[,]" when "there

[was] some avenue for review of the prior ruling[s] on the

issue[s]" [citations omitted]).

4. "Non-consent" by victim of statutory rape. The Supreme

Judicial Court has determined that "[a]s a matter of law, a

person below the age of sixteen is deemed incapable of

consenting to sexual intercourse. Therefore, lack of consent is

not an element of the offense" of statutory rape. Commonwealth

v. Wilbur W., 479 Mass. 397, 398 (2018), citing G. L. c. 265,

§ 23; Commonwealth v. Miller, 385 Mass. 521, 522 (1982).

Although the defendant asks us to revisit this determination, we

are without the authority to do so.8 See Commonwealth v.

Harrington, 74 Mass. App. Ct. 14, 15 (2009), quoting

Commonwealth v. Healy, 26 Mass. App. Ct. 990, 991 (1988) ("the

8 The defendant acknowledges this fact in his brief.

7
'argument that this court should overrule the Supreme Judicial

Court's decision . . . is frivolous, as we lack any such

power'").

5. Denial of request for evidentiary hearing. A judge may

properly deny a motion for a new trial without an evidentiary

hearing "if no substantial issue is raised by the motion or

affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435

Mass. 1501 (2001). "In determining whether a substantial issue

exists, 'a judge considers the seriousness of the issues raised

and the adequacy of the defendant's showing'" (citation

omitted). Upton, 484 Mass. at 162.

On this point, the crux of the defendant's argument is that

without an evidentiary hearing, he was precluded from presenting

the motion judge with the audiovisual recording of the victim's

sexual assault intervention network (SAIN) interview, without

which the judge could not appreciate the full value of the

victim's statements as impeachment evidence. We are not

persuaded. When deciding to deny the defendant's motion, the

motion judge had portions of the trial transcript before him, in

addition to the defense counsel's "Guide to Audio-video

Recording of SAIN Interviewer,"9 and police reports of the

9 This document appears to be a summary of the portions of
the recorded interview that defense counsel viewed as the most
powerful potential impeachment evidence.

8
initial victim interview and the victim's SAIN interview. In

this circumstance, we see no reason to question the judge's

determination that "the contents of the [SAIN] interview [were]

well understood from the existing trial record."

As to the defendant's remaining arguments in support of his

motion, in light of our assessment of them, supra, we discern no

error or other abuse of discretion in the motion judge's

conclusion that the defendant failed to show his entitlement to

an evidentiary hearing in this case. See Upton, 484 Mass. at

162.

Conclusion. The orders denying (1) the defendant's motion

for a new trial and (2) motion for reconsideration of that order

are affirmed.

So ordered.

By the Court (Massing, Hand &
Smyth, JJ.10),

Clerk

Entered: November 5, 2024.

10 The panelists are listed in order of seniority.

9