Commonwealth v. Bernardino Baran-Garcia.

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-952

COMMONWEALTH

vs.

BERNARDINO BARAN-GARCIA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On January 19, 2023, after a jury trial in the Boston

Municipal Court, the defendant was convicted of assault by means

of a dangerous weapon, in violation of G. L. c. 265, § 15B (b),

and larceny from a person, in violation of G. L. c. 266,

§ 25 (b). 1 The defendant now appeals, contending that (1) a

photographic array identification was unduly suggestive; (2) the

motion judge was not impartial during a hearing on a motion to

suppress the photographic array identification; (3) an officer's

testimony at trial contained inadmissible prior consistent

1For each charge, the defendant received a sentence of two
and one-half years committed to the house of correction to be
served concurrently.
statement evidence and hearsay; and (4) the evidence was

insufficient to find that the defendant was the person

responsible for the assault by means of a dangerous weapon. We

affirm.

Background. Given the nature of the defendant's claims, we

recite the facts as the jury could have found them in some

detail. See Commonwealth v. Kapaia, 490 Mass. 787, 787-788

(2022). The convictions relate to two separate May 28, 2021

incidents that occurred on the same Massachusetts Bay Transit

Authority (MBTA) Red Line train within minutes of each other.

1. Larceny from a person. J.J. 2, the victim in the first

incident, boarded a Red Line train at the Fields Corner station;

the incident occurred shortly thereafter, at around 5:30 P.M.,

and lasted approximately ten to fifteen minutes. While riding

the train, she noticed three people -- two men and one woman --

who had entered the train at the JFK/UMass station and were

coming in and out of the train and "constantly" changing seats.

J.J. subsequently described one man, who she identified as the

defendant, as a "Hispanic male in his 20's wearing a black

hoodie and jeans." She described the other man as Hispanic, but

older, "in his 40's, maybe or late 30's," and the woman as a

2 We adopt the convention used by the parties to refer to
the victims.

2
"fair skin female, maybe late 20's, early 30's with like kind of

orangey hair in a ponytail." The defendant approached J.J.,

attempted to give her a rose while telling her she looked

beautiful, and yelled at her about Jesus and needing to repent.

J.J. asked him to leave her alone, but he continued. Finally,

one of the defendant's companions, who was some distance away,

told J.J. to accept the rose and that the defendant would not do

anything and leave her alone if she accepted the flower. As a

result, J.J. took the rose in an effort to have the defendant

leave her alone. The defendant then went and sat with his two

companions.

After the defendant sat down, J.J., using her cell phone,

called her boyfriend to tell him that someone was harassing her.

While J.J. was on the phone, the defendant came and sat in front

of her and when he noticed she was on the phone he asked her who

she was calling. After J.J. emphatically told the defendant

that she was not calling anyone, the defendant pointed at her

and pulled up his hoodie, revealing what J.J. described as "this

like huge blade . . . like a machete knife" that was on the

defendant's waist, "[l]ike from side to side." J.J. noted that

she "couldn't even see the handle because it was so long."

The defendant then looked at J.J. defiantly and asked her

for money. When she told him she did not have any money he

repeatedly asked her for one dollar. Eventually, she gave him a

3
little leather wallet containing some "European money." The

defendant then got up, sat directly next to J.J. while holding

the knife, and put his hand on her shoulder. In response, J.J.

told him, "I swear to God I don't have any more money," begged

him to just let her go, and assured him that she was not going

to say anything. The defendant would not leave and instead

stood in front of her and asked for her phone, which J.J. also

gave to the defendant. After J.J. gave the defendant her phone,

the defendant's female companion then came over, stood next to

him, and asked J.J. for the password to her phone. As they

approached Broadway station, J.J., in tears, pleaded with the

two people to let her go, saying that she had a daughter she

needed to pick up from school. At the Broadway station, the

defendant's male companion, whom J.J. identified as "the older

male," joined the defendant and the female companion while J.J,

continued to plead to let her go, saying that she had a "a

little daughter that is waiting for me to be picked up from

school." It was at this point the older male convinced the

defendant to return J.J.'s phone to her and told her to "Just

go. Just go, please." J.J. then left the train at the Broadway

station.

J.J. met with police outside of the Broadway station and

described the defendant as a Hispanic male in his twenties

4
wearing a black hoodie and jeans. 3 She also described the other

man as Hispanic and older than the defendant.

2. Assault by means of a dangerous weapon. On the same

day, approximately fifteen minutes later, at around 5:45 P.M.,

the victim of the second incident, T.K., boarded the same Red

Line train at the Park Street station. 4 Shortly after boarding,

she noticed a man lying across a few different seats with "like

some backpacks around them." She noted that the man was wearing

a black coat with his hood up, a black mask, and "a neon

backpack, like, a drawstring type bag" near him. A bystander

also noted the man lying on the seats and testified that there

were "two people directly across from him that seemed to know

him." He also testified that the man lying on the seats was

wearing multiple coats, that"[o]ne of them may have been black,

and one of them may have been yellow," but acknowledged that he

was not sure, and that the man was wearing "work boots" or "beat

up shoes." He also recalled that the man had "quite a few items

with him," including a series of reusable shopping bags. The

3 As discussed in more detail below, J.J. later identified a
photograph of the defendant from a photographic array as the
person who attacked her on the train.

4 The Park Street station is three stops after the Broadway
station, where J.J. left the train.

5
bystander also testified that he thought the other man was

wearing a gray sweatshirt.

Approximately thirty seconds after T.K. boarded the train,

while she was on her phone, the same man who had been lying down

across the seats approached her and said, "Give me your money."

T.K. told the man that she did not have any money. The man then

repeated his demand, "Give me your money" more aggressively and

opened his jacket, revealing what T.K. described as "a really

big knife." Again T.K. told him, "I don't have any money". The

bystander testified that he heard T.K. tell the man to get away

from her and saw the man who had been lying down "leaning,

almost lurching over her." A woman sitting next to T.K. also

saw the knife and pushed T.K. across the train car where there

were more people. This woman then sat down with T.K. The

bystander testified that T.K. appeared scared, "like very curled

up and she was -- she was shaking." While sitting on the other

side of the train, T.K. tried to make herself "not too visible

and not too . . . noticeable" because she did not want the man

to realize that she was still on the train.

T.K. wanted to leave the train but was afraid because the

man was near the train's door. However, other passengers then

stood up so that the man would not be able to see T.K. T.K.

then left the train at the Charles/MGH station, one stop away

from where she had boarded, and had no further interaction with

6
the man who showed her the knife and demanded her money. After

leaving the train, T.K. spoke with the train conductor, who said

that he would call the police to come to the Kendall/MIT

station, the next stop after the Charles/MGH station. T.K.

reboarded the train, which waited in a tunnel for around ten

minutes for the police to arrive at the Kendall/MIT station.

An MBTA Transit Police officer who subsequently

participated in the defendant's arrest, Officer Harer, was

dispatched to the Kendall/MIT station around 6 P.M. He arrived

while two other officers, Officer Sans and Sergeant Rutledge,

were removing a man who Officer Harer identified as the

defendant from the train. Officer Harer testified that the

defendant was a Hispanic man who looked to be in his twenties

and was wearing a dark coat, blue jeans, and dark-colored

sneakers, but did not recall if he was wearing a face mask.

When Officer Harer arrived, Officer Sans was already holding a

large kitchen knife, so Officer Harer assisted Sergeant Rutledge

with placing the defendant in custody. Officer Harer read from

a police report at trial that stated that "[w]hen Officer Sans

searched the man's waistband area, he discovered a large kitchen

knife with a black handle tucked into the front of the

waistband." 5 Officer Harer testified that the knife was a four

5 Officer Sans did not appear at trial because he no longer
worked for the MBTA Transit Police.

7
to six inch long kitchen knife. The police recovered a second

knife from William Orellana, a thirty-eight year old man who

police initially identified as a suspect, 6 when he attempted to

discard it. The police seized both knives, but neither was

entered in evidence at trial. After placing the defendant in

custody, Officer Sans and Sergeant Rutledge continued

investigating the incident while Officer Harer remained with the

defendant.

After T.K. arrived at the Kendall/MIT station, she spoke

with the police and described the man with the knife on the

train as "someone with like a black jacket and a black mask,

their hood was up, they had this backpack, and I think even a

bag with white sneakers." The police returned and told T.K.

that there were two people who matched the description she gave

and who both had knives. The police showed both knives to T.K.,

and she said it was "very obvious which knife it was." T.K.

testified that the knife was "almost kind of like a chef's

knife, like it was a really big kind of knife you'd use to cut a

potato with," and "like a really big blade with a black handle."

She further testified that it was "like an inch and a half to

6 Police detained the defendant, Orellana, and Allison
Sullivan as suspects at the Kendall/MIT station after the
incident.

8
two inches wide and . . . quite long," and "like six to nine

inches long, and it had a black handle."

T.K. then left the train to answer a police officer's

questions. While answering questions, she saw that there was,

with police officers, a man on the ground who she recognized as

the person who had attacked her. The bystander, who had walked

off the train at the Charles/MGH station and boarded the next

train traveling in the same direction, testified that as the

train approached what he believed was the Kendall/MIT station,

he saw the man who attacked T.K. laying down on the ground. He

also saw that an officer standing next to the assailant was

holding a "silver . . . kitchen" knife that "was just kind of

like cartoonish in proportion."

On July 19, 2021, T.K. participated in a photographic array

identification but declined to identify anyone as the person who

attacked her because she "just didn’t feel like [she] had seen

his face well enough during the interaction" as she had been

"looking at the knife most of the time," and the man had been

wearing a mask and a hood. 7 At trial, both T.K. and the

7 The bystander also declined to participate in a
photographic array because the identification procedure was at
the police station, and he did not want to leave his wife alone
when she had given birth to his first child two days before.

9
bystander testified that they could not say with certainty that

the defendant was the person who attacked T.K.

Discussion. 1. The photographic array. The defendant

first argues that his motion to suppress the out-of-court

identification by photographic array should have been allowed.

An out-of-court eyewitness identification arising from a police

identification procedure is not admissible "if the defendant

proves by a preponderance of the evidence that the

identification was 'so unnecessarily suggestive and conducive to

irreparable misidentification that its admission would deprive

the defendant of his right to due process.'" Commonwealth v.

Johnson, 473 Mass. 594, 597 (2016), quoting Commonwealth v.

Walker, 460 Mass. 590, 599 (2011). "[T]he judge must examine

the totality of the circumstances attending the confrontation to

determine whether it was unnecessarily suggestive" (quotation

and citation omitted). Johnson, supra. We accept the judge's

subsidiary findings based partly or wholly on oral testimony

unless clearly erroneous but independently review documentary

evidence (such as photographs) and the judge's ultimate findings

and conclusions of law. Commonwealth v. Ploude, 101 Mass. App.

Ct. 845, 850 (2022).

Here, on July 16, 2021, J.J. identified the defendant from

a photographic array. The defendant contends J.J.'s

photographic array identification was unnecessarily suggestive,

10
highlighting (1) that the photograph of the defendant was

labeled "Page #: 7 of 8" but was the last photograph in the

array when submitted in evidence at the motion to suppress

hearing, and (2) six of the seven "filler" photographs had

features that distinguished the subjects of the photographs from

the defendant. We disagree.

To begin, we note that the officer who created the

photographic array testified that she used a system that

provides photographs of people whose features match the

characteristics that have been entered in to a database. She

also testified that, in selecting photographs for the array, she

chose photographs of people with characteristics similar to the

defendant.

Additionally, the officer who administered the photographic

array to J.J. (presenter) did not know who the defendant was

prior to administering the array. He further testified that

prior to showing J.J. the array he read a list of instructions

to her designed to reduce suggestiveness, including that she

should not feel compelled to make an identification as the

person who committed the crime may or may not be included in the

array.

While the defendant's photograph was sequentially out of

order when the Commonwealth introduced it in evidence at the

motion to suppress hearing, there is no further evidence that

11
the presenter showed it to J.J. out of numerical order. 8 In any

event, the label "Page #: 7 of 8" is written in a small font

size in the corner of the page, such that the label would be

easily overlooked.

We also do not view the "filler" photographs' features that

the defendant highlighted to be so distinct as to be

unnecessarily suggestive. 9 See Johnson, 473 Mass. at 597. Two

of the subjects of the photographs have "light beards," two have

"five o'clock shadows," one has facial scarring, and one appears

to be noticeably younger than the others. However, all of the

subjects match J.J.'s description of the defendant, and the

officer who administered the photographic array instructed J.J.

that "[p]eople may not appear exactly as they did at the time of

the event because features such as clothing, hair, [and] facial

hair are subject to change." 10 We therefore do not view the

identification procedure to have been unnecessarily suggestive.

See Johnson, supra.

8 The presenter testified that he did not know when the
defendant's photograph was placed out of order in the array.

9 As detailed in his reply brief, the defendant has
withdrawn his contention that the motion judge erred in finding
that two, rather than four, of the photographs in the array
showed people with facial hair.

10In fact, while J.J. described the defendant as wearing a
black hoodie, the only subject wearing a black hoodie in the
photographic array was a person other than the defendant.

12
2. The motion judge's questions. For the first time on

appeal, the defendant argues that the motion judge improperly

"usurped the prosecutor's role and elicited substantial

testimony that otherwise would not have been elicited." Because

the defendant did not object to the judge's questioning at

trial, we review the defendant's claim of judicial bias for

whether the judge's questioning created a substantial risk of a

miscarriage of justice. See Commonwealth v. Proia, 92 Mass.

App. Ct. 824, 836 (2018) (defendant's unpreserved claim that

judge did not act as "impartial arbiter" during jury empanelment

reviewed for whether judge's comments created substantial risk

of miscarriage of justice). "To decide whether an error creates

a substantial risk of a miscarriage justice, we must determine

'if we have a serious doubt whether the result of the trial

might have been different had the error not been made.'"

Commonwealth v. Desiderio, 491 Mass. 809, 810 (2023), quoting

Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.

72 (2005).

Here, the motion judge's questions were appropriately

limited, primarily asking for elaboration on or clarification of

testimony that the prosecutor had already elicited. See

Commonwealth v. Lucien, 440 Mass. 658, 664 (2004) ("A judge may

properly participate in the questioning of a witness so long as

the questioning is not partisan in nature"). For example, the

13
motion judge asked the officer who created the photographic

array to explain what a "blind presenter" was after the officer

testified that a blind presenter administers the identification

procedure. The judge also queried which specific advisements

the officer administering the identification procedure gave to

T.K. after the officer testified that he read written

instructions to T.K. prior to presenting the array to T.K.

Given the totality of the circumstances, and because the

photographic array was not unnecessarily suggestive, we are not

persuaded that a substantial risk of a miscarriage of justice

has occurred. See Desiderio, 491 Mass. at 810.

3. Officer Mohler-Faria's testimony. At trial, Officer

Mohler-Faria recounted J.J.'s report of the first incident,

given after she departed the train at the Broadway station. The

defendant contends, and the Commonwealth concedes, that it was

error to allow Officer Mohler-Faria to testify to J.J.'s out-of-

court statements. See Commonwealth v. Novo, 449 Mass. 84, 93

(2007), quoting Commonwealth v. Tennison, 440 Mass. 553, 563

(2003) ("A witness's prior statement that is consistent with

that witness's trial testimony is usually inadmissible").

Nevertheless, the defendant acknowledges that he did not object

to Officer Mohler-Faria's testimony at trial. Accordingly, we

review for whether the testimony's admission, if erroneous,

created a substantial risk of a miscarriage of justice. See

14
Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 325 (2016).

Assuming without deciding that the admission of Officer Mohler-

Faria's testimony was erroneous, we conclude that its admission

did not create a substantial risk of a miscarriage of justice.

See id.

The reported description of the defendant that Officer

Mohler-Faria received was vague, stating only that the defendant

was a man in his mid-twenties wearing jeans and a black

sweatshirt, and did not mention his ethnicity. 11 Notably,

Officer Mohler-Faria's testimony was also cumulative of J.J.'s

testimony about the defendant's description, and further J.J.

identified the defendant in court. See Commonwealth v. Wilson,

427 Mass. 336, 348 (1998) (improperly admitted hearsay evidence

of defendant's hostility not prejudicial because it was "merely

cumulative of properly admitted evidence"). Accordingly,

Officer Mohler-Faria's testimony did not create a substantial

risk of a miscarriage of justice. See Shruhan, 89 Mass. App.

Ct. at 325.

11In fact, rather than simply restating J.J.'s testimony,
Officer Mohler-Faria's testimony differed slightly. J.J.
testified that she eventually took the rose that the defendant
offered, but Officer Mohler-Faria testified that "[w]hen [J.J.]
didn't accept the rose, she stated the male had a knife and
demanded money from her."

15
4. The defendant's motion for a required finding of not

guilty. We review the denial of a motion for a required finding

of not guilty for whether "the evidence introduced up to the

time the Commonwealth rested its case to determine whether the

evidence, viewed in the light most favorable to the

Commonwealth, was sufficient for a reasonable jury to infer the

existence of each essential element of the crime charged, beyond

a reasonable doubt." Commonwealth v. Rivera, 460 Mass. 139, 141

(2011). Identification of the defendant "is a key element in

every criminal trial, and the absence of identification has

always been a basis requiring acquittal." Commonwealth v.

Koney, 421 Mass. 295, 302 (1995).

Here, the defendant contends that the Commonwealth failed

to prove that the defendant was responsible for the assault by

means of a dangerous weapon incident against T.K. To support

his contention, the defendant highlights the fact that neither

T.K. nor the bystander identified the defendant as the person

responsible for the offense. He also highlights the fact that

T.K. testified that the police identified two men at the

Kendall/MIT station who matched her description of the defendant

and who both had knives. We are not persuaded.

Contrary to the defendant's contention that the evidence

equally supports two inconsistent propositions -- that either

the defendant committed the offense or the defendant's companion

16
found with a knife committed the offense -- the evidence

presented to the jury, and the Commonwealth's theory,

consistently identified the defendant as the one who committed

the offense. See Commonwealth v. Lodge, 431 Mass. 461, 465

(2000) ("circumstantial evidence is competent to establish guilt

beyond a reasonable doubt").

J.J. described the defendant as a Hispanic man in his

twenties wearing a dark hoodie and jeans. She then identified

the defendant as her assailant from a photographic array. T.K.

also described the perpetrator of the second assault as wearing

a black coat with his hood up. Officer Harer described the

defendant as a Hispanic man wearing a dark coat, blue jeans, and

dark-colored sneakers. While the bystander was uncertain at

trial that the perpetrator of the second incident was wearing

multiple coats, one of which may have been black and one which

may have been yellow, he described the perpetrator's male

companion as wearing a gray sweatshirt. As a result, the jury

reasonably could have concluded that, based on the consistent

trial descriptions of the defendant as a Hispanic man in his

twenties wearing a dark top and jeans, all four witnesses were

describing the same man -- the defendant. See Rivera, 460 Mass.

at 141. Although the police at the Kendall/MIT station told

T.K. that two people they had detained matched her description,

the defendant and Orellana, the bystander testified that the

17
second man was wearing a gray sweatshirt, which was inconsistent

with any description of the perpetrators of the assaults.

Though the defendant suggests that J.J.'s descriptions of

the knife as "huge" and "like a machete" are inconsistent with

T.K.'s description of the knife, we disagree. A knife that one

witness describes as "huge" and "like a machete" could

reasonably be described by another as "a really big knife." See

Commonwealth v. Sabin, 104 Mass. App. Ct. 303, 305 (2024) ("The

inferences that support a conviction need only be reasonable and

possible; [they] need not be necessary or inescapable"

[quotation and citation omitted]).

More importantly, T.K.'s description of the knife -- "kind

of like a chef's knife" with a black handle and a blade that was

six to nine inches long -- squares with Officer Harer's and

Officer Sans's descriptions of the knife that Officer Sans

confiscated from the defendant. As noted at trial, Officer

Sans's report described the knife as "a large kitchen knife with

a black handle," and Officer Harer described the knife as a

kitchen knife that was four to six inches long. Indeed, T.K.'s

statement that "it was very obvious which knife it was"

suggests, despite the absence of a description of the second

knife, that the knives were distinct enough in appearance that

the second knife would not have matched any of the witness

descriptions of the knife used to assault T.K.

18
In the end, both victims testified to similar crimes

occurring minutes apart on the same train. And both victims

testified to a man exhibiting erratic behavior who demanded

money and revealed a large knife concealed in his clothing.

In light of the similar descriptions of the man's

appearance, the knife used in the attacks, the similar behavior

between the two incidents, and the fact that the incidents

occurred close in time, the jury had sufficient evidence to

conclude beyond a reasonable doubt that the defendant was

responsible for the second incident. See Rivera, 460 Mass. at

141; Lodge, 431 Mass. at 465.

Judgments affirmed.

By the Court (Meade,
Desmond & Wood, JJ. 12),

Clerk

Entered: May 20, 2026.

12 The panelists are listed in order of seniority.

19