Commonwealth v. Alexander Rosario.

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-1115

COMMONWEALTH

vs.

ALEXANDER ROSARIO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial, a Juvenile Court judge found

the defendant guilty as a youthful offender on indictments

charging unlawful possession of a firearm (G. L. c. 269,

§ 10 [a]), unlawful possession of a loaded firearm (G. L.

c. 269, § 10 [n]), and three counts of assault with a dangerous

weapon (G. L. c. 265, § 15B [b]). On appeal, the defendant

contends that the evidence at trial was insufficient to

establish his identity as the person who fired gunshots at

occupants of a car and asks that we vacate his convictions. We

affirm.

Background. We summarize the facts in the light most

favorable to the Commonwealth, reserving some details for our

discussion of the sufficiency of the evidence. Commonwealth v.

Lopez, 484 Mass. 211, 211 (2020).
On February 5, 2020, at about 10:53 A.M., an assailant shot

twice at Jasaiah Belmont's Nissan as he drove along North Warren

Avenue in Brockton with his mother and girlfriend riding as

passengers. One of the gunshots struck the window of another

vehicle parked at Superior Bakery. The assailant and two

companions fled on foot along North Warren Avenue. The gunshots

activated Brockton's "ShotSpotter" system, triggering an

immediate investigation. Brockton police found two .40 caliber

shell casings at the scene. No percipient witness of the

shooting saw the shooter's face. Detectives subsequently

canvassed the neighborhood for video surveillance cameras and

gathered footage of the shooting and the shooter's movements

throughout the morning.

Through a review of video surveillance from Fernandez

Liquors, detectives identified the defendant as a customer about

fifty minutes before the shooting. Detective Ernest Bell, who

was familiar with the defendant, viewed the Fernandez Liquors

video and identified the defendant as the person depicted.

Detectives isolated a still photograph from the video and showed

it to Probation Officer Bonnie Vonasek, who was also familiar

with the defendant and identified him as the person depicted.

Based upon these images, the defendant appeared to be a male

with a clean-shaven light complexion. He wore distinctive

clothing: a black coat with a light brown fur-trimmed hood and

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an orange lining; a dark blue, hooded sweatshirt with a white

Nike logo on the front; black pants; and black sneakers. Two

males accompanied him to the store. One wore light blue pants

and a light blue coat. The second, with a darker complexion and

some facial hair, wore a black baseball cap with a white logo, a

black coat with a dark-brown fur-trimmed hood, light blue pants,

and white sneakers.

With the identification of the defendant wearing this

distinctive clothing in the company of two other men, detectives

utilized other area surveillance video within several contiguous

city blocks to develop a timeline that included the defendant's

movements on the morning of the shooting. According to the

surveillance videos, at about 10:00 A.M., the defendant and the

two men walked south along North Warren Avenue until arriving at

Fernandez Liquors where the store video recorded the defendant's

facial image and his distinctive clothing. Less than ten

minutes later, the defendant and the man with the baseball cap

left the liquor store and walked back in the direction of their

route. At about 10:36 A.M., two unknown individuals threw

bricks at a BMW parked on Wyman Street, several houses from the

intersection with North Warren Avenue. At about 10:47 A.M., the

defendant, the man with the baseball cap, and a third male

emerged from a residence on North Warren Avenue and walked a

short distance (about three houses) to view the damaged BMW

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around the corner on Wyman Street. The defendant and the man

with the baseball cap appeared as before in the surveillance

video except they changed footwear, with the defendant now

wearing white sneakers (instead of black) and the man with the

baseball cap wearing black sneakers (instead of white). While

on the corner of Wyman Street and North Warren Avenue, the

defendant, the man with the baseball cap, and the third male

raised their arms and appeared to yell at the occupants of the

Belmont Nissan that drove past. The defendant's group then

walked back to the residence on North Warren Avenue. At 10:51

A.M., the man with the baseball cap and the third male emerged

from the residence on North Warren Avenue, walked to the BMW,

and then walked back to the corner of North Warren Avenue and

Wyman Street where the defendant joined them.

At about 10:53 A.M., the Belmont Nissan returned to the

corner of North Warren Avenue and Wyman Street where the

defendant, the man with the baseball cap, and the third

individual stood. The defendant, wearing the same distinctive

clothing from the liquor store (except for the sneakers),

reached into his jacket, produced a handgun, and fired two shots

at the passing Belmont Nissan. The defendant and his two

companions fled north.

Discussion. After viewing this evidence, the trial judge

denied the defense motion for a required finding of not guilty.

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On appeal, the defendant claims the judge erred because the

evidence failed to identify him as the shooter. In reviewing a

challenge to the sufficiency of the evidence, the "question is

whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "The

relevant question is whether the evidence would permit a jury

[or judge] to find guilt, not whether the evidence requires such

a finding." Commonwealth v. Brown, 401 Mass. 745, 747 (1988).

Upon careful review of the record, we are satisfied the evidence

permitted the judge to conclude that the defendant fired the

gunshots.

The Fernandez Liquors surveillance video provided critical

identification evidence that ultimately linked the defendant to

the shooting. Detective Bell and Probation Officer Vonasek

identified the defendant as the person depicted in that video.

Because of the distinctive clothing worn by the defendant,

detectives utilized other area surveillance video within several

contiguous city blocks to develop a timeline that traced the

defendant's movements up to the time of the shooting. The

videos, timeline, testimony, map, and the defendant's constant

pairing with the man wearing the baseball cap all combined to

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cabin the defendant's movements within a tight temporal and

physical proximity, which would enable a fact finder to conclude

that he was the shooter. See Davis v. Commonwealth, 491 Mass.

1011, 1014 (2023) (sufficient evidence identifying shooter

included inconclusive surveillance video "presented

sequentially" with other circumstantial evidence "in a logical

order"); Commonwealth v. Brown, 490 Mass. 171, 177 (2022)

(sufficient evidence identifying shooter included "positive

identification of the defendant in the surveillance video

footage, a few blocks from the scene of the shooting,

approximately ten minutes before the shooting took place, by two

witnesses who knew him"); Baxter v. Commonwealth, 489 Mass. 504,

509 (2022) (sufficient evidence identifying shooter included

video footage showing person resembling defendant driving car

about six minutes before shooting occurred).

In support of his argument, the defendant points to

countervailing facts. He emphasizes the absence of physical

evidence such as the firearm, fingerprints, ballistics,

clothing, and "clear photographic evidence" depicting the facial

features of the shooter. He also stresses the absence of any

identification from a "contemporaneous eyewitness" to the

shooting and underscores the changed footwear. In reviewing the

denial of a motion for a required finding of not guilty,

however, "we do not weigh the supporting evidence against

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conflicting evidence." Commonwealth v. Merry, 453 Mass. 653,

660 (2009). "That evidence is conflicting does not demand a

required finding of not guilty." Id. at 661. Also, to the

extent conflicting inferences are possible from the evidence, it

was for the judge "to determine where the truth lies, for the

weight and credibility of the evidence [was] wholly within [her]

province" as the fact finder. Commonwealth v. Lao, 443 Mass.

770, 779 (2005). We also note that the Fernandez Liquors video,

unlike the other videos, did depict facial features that would

enable identification. The other videos, though of lower

quality, depicted the movements of very few individuals and

vehicles during a limited period, and the defendant's

distinctive clothing was clearly visible. This is not a case

where the defendant's convictions rest on "speculation" or

"conjecture." Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).

Finally, the defendant makes a passing reference to the

judge's failure "to instruct herself correctly in evaluating the

evidence." Putting aside that the defendant does not elaborate

on this contention and we therefore "need not pass upon" it,

Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628

(2019), we discern nothing in the record to even suggest that

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the judge failed to apprehend her role in evaluating the

evidence or in applying the controlling law.

Judgments affirmed.

By the Court (Wolohojian,
Shin & Hodgens, JJ.1),

Clerk

Entered: August 11, 2023.

1 The panelists are listed in order of seniority.

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