Commonwealth v. Paul Pereira.

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

21-P-993

COMMONWEALTH

vs.

PAUL PEREIRA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of several

drug and firearm related charges, including conspiracy to

traffic in 200 grams or more of cocaine. With one exception,

the convictions were affirmed on appeal. See Commonwealth v.

Pereira, 84 Mass. App. Ct. 1135 (2014). Thereafter, the

defendant moved for a new trial, which was denied. The denial

of that motion was also affirmed on appeal. See Commonwealth v.

Pereira, 97 Mass. App. Ct. 1109 (2020). Undeterred, the

defendant moved pursuant to Mass. R. Crim. P. 25 (b) (2), as

amended, 420 Mass. 1502 (1995), to again challenge the

sufficiency of the evidence supporting his conviction of

conspiracy to traffic cocaine. That motion was denied for the

reasons stated in the Commonwealth's opposition, which included
the assertion that the defendant's claim was barred by direct

estoppel. We agree and affirm.

In Commonwealth v. Arias, 488 Mass. 1004, 1007 (2021), the

Supreme Judicial Court announced that claim preclusion and

estoppel apply to a motion under rule 25 (b) (2) as well as to a

motion for a new trial filed under Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001). Direct estoppel, a form of

claim preclusion, applies when the following three conditions

are met: (1) the current issue was litigated and determined;

(2) the determination was essential to the defendant's

conviction; and (3) the defendant had an opportunity to obtain

review of that determination. Commonwealth v. Sanchez, 485

Mass. 491, 498 (2020); Commonwealth v. Rodriguez, 443 Mass. 707,

710 (2005). In addition to direct estoppel, the doctrine of

waiver comes into play when a defendant fails to address an

issue that could have been raised on direct appeal or in a prior

motion for a new trial. See Commonwealth v. Roberts, 472 Mass.

355, 359 (2015); Mass. R. Crim. P. 30 (c) (2), 378 Mass. 901

(1979).

On appeal from the denial of his second postconviction

motion, the defendant claims that a mere buyer-seller

relationship is not enough to prove a conspiracy, and thus, the

evidence was insufficient to support his conviction. On direct

appeal, the defendant also claimed the evidence was insufficient

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to support his conviction for conspiracy to traffic in cocaine,

albeit in different terms.

In this appeal, the defendant is estopped from relitigating

his sufficiency claim because all three conditions of direct

estoppel have been met. The claim was litigated and determined

on direct appeal, and the sufficiency of the evidence was

essential to the defendant's conviction. See Commonwealth v.

Watkins (No. 1), 486 Mass. 801, 806 (2021). Indeed, on direct

appeal, we held that "the Commonwealth's evidence showed that

the defendant engaged in a conspiracy to traffic in cocaine

based on the recorded telephone conversations," and that "the

jury could have concluded the defendant had conspired to traffic

in 200 grams or more of cocaine." Pereira, Mass. App. Ct., No.

11-P-2096, slip op. at *5-*6.

Nonetheless, the defendant claims that direct estoppel does

not apply here because he made a different sufficiency argument

on direct appeal than he does in this appeal.1 We disagree. As

the Supreme Judicial Court has stated, "[a] defendant may not

avoid basic concepts of waiver, estoppel, and preclusion by the

expedient of recasting claims decided adversely to him or her

1 On direct appeal, the defendant claimed that the Commonwealth
failed to prove that the conspiracy was to traffic more than 200
grams of cocaine, whereas here, he claims the Commonwealth
failed to prove the element of "conspiracy."

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into a motion filed under rule 25 (b) (2)." Arias, 488 Mass. at

1007.

Even though the claim is barred or waived, if we addressed

the merits, we would conclude that there was sufficient evidence

to support the defendant's conviction, and thus, there was no

risk that justice miscarried. See Commonwealth v. Randolph, 438

Mass. 290, 293–294 (2002). In the light most favorable to the

Commonwealth, the evidence demonstrated that the defendant was

engaged in an extensive drug distribution conspiracy sufficient

to sustain seven conspiracy convictions in addition to the

conspiracy to traffic conviction. The evidence showed that the

defendant was buying cocaine from a supplier, and then selling

cocaine to individual buyers. Given the quantity of cocaine at

issue, the jury were free to infer that the conspirators

understood that the cocaine the defendant received from his co-

conspirator would then be sold to others. See Commonwealth v.

Casale, 381 Mass. 167, 173 (1980) ("inferences drawn by the jury

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need only be reasonable and possible and need not be necessary

or inescapable").

Order denying postconviction
motion affirmed.

By the Court (Meade, Blake &
Brennan, JJ.2),

Clerk

Entered: July 10, 2023.

2 The panelists are listed in order of seniority.

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