Commonwealth v. Pannell
Commonwealth v. Pannell
Opinion of the Court
The defendant was convicted by a jury in the District Court of carrying a firearm without a license in violation of G. L. c. 269, § 10(a ).
1. Motion to suppress. a. Facts. We summarize the judge's findings of fact on the motion to suppress the firearm, supplementing where appropriate with uncontroverted testimony from the suppression hearing.
While on patrol in a marked cruiser on the afternoon of July 7, 2014, Springfield police Officer Lawrence Pietrucci was flagged down by Kimberly Martinez. Martinez appeared nervous and upset. She was with a man, later identified as Rodney McCants,
In denying the motion to suppress, the judge concluded that the defendant was seized when Officer Hiney ordered him to stop. He further concluded that the stop and subsequent seizure of the firearm was justified because there was a reasonable suspicion, based on specific and articulable facts, that the defendant had committed or was committing a crime. Those facts, the judge explained, included (1) "an identifiable citizen at the scene had reported the bag which the defendant possessed contained a gun," (2) "another person at the scene (McCants) was bleeding from a head wound," and (3) "the defendant was [walking] away from that person while carrying a baby."
b. Discussion. On appeal, we accept the judge's findings that are supported by the record and conduct an independent review of his ultimate findings and conclusions of law. See Commonwealth v. Jones-Pannell,
Like the motion judge, we conclude that the defendant was seized in the constitutional sense when Officer Hiney ordered him to stop. See Commonwealth v. Grandison,
2. The prosecutor's closing argument. The defendant argues that the prosecutor improperly aligned himself with the jury by his repeated use of the pronoun "we." The defendant claims that this error, together with the prosecutor's improper vouching for Officer Pietrucci's credibility, created a substantial risk of a miscarriage of justice.
The prosecutor used the phrase "we know" approximately six times while discussing the evidence. We have criticized the repeated use of the pronoun "we" by prosecutors in their closing arguments in other cases. See Commonwealth v. Burts,
3. Sufficiency. The defendant argues that, even though he was holding the diaper bag when he was stopped by the police, there was insufficient evidence to prove that he knew the firearm was in the bag or that he exercised control over it. Consequently, he claims that the judge erred by denying his motion for a required finding of not guilty. We disagree. To review a claim of sufficiency of the evidence we ask 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,
Here, the evidence warranted the inferences that the defendant knew that the diaper bag contained a firearm, and that he exercised control over it. Officer Pietrucci testified that the defendant was carrying the bag and that the bag felt "abnormally heavy for a baby bag" when he removed it from the defendant's shoulder. Once he put the bag down, Officer Pietrucci saw a portion of the gun. In addition, the jury could have reasonably inferred that the defendant was attempting to avoid the police when he ignored Officer Hiney's command to stop and instead entered the apartment building. Such conduct supports an inference of consciousness of guilt. See Commonwealth v. Sabetti,
Judgment affirmed.
The defendant was found not guilty of possessing a firearm without a license in violation of G. L. c. 269, § 10(h ), and the charge of possession of a firearm with a defaced serial number during the commission of a felony, in violation of G. L. c. 269, § 11B, was nol prossed before trial.
Two police officers and the defendant testified at the evidentiary hearing on the motion to suppress. Although the judge explicitly credited the officers' testimony, a number of his findings are inconsistent with the testimony they provided. As such, these findings are clearly erroneous and we do not rely on them. See Commonwealth v. Cawthron,
There is some confusion over whether Rodney's last name is McCants or McKenzie. The witnesses referred to Rodney McCants at the hearing on the motion to suppress. However, at trial, the defendant testified that Rodney's last name is McKenzie. We use the name "McCants."
Although the judge found that Martinez "had a dispute with McCants," Officer Pietrucci testified that Martinez pointed to the defendant.
The judge found that the defendant was "jogging away." However, Officer Hiney testified that the defendant was walking and that he (Hiney) had to jog to catch up. Nothing turns on this erroneous finding given our conclusion that the police had reasonable suspicion to stop the defendant based on the information provided by Martinez.
The judge found that "no part of the firearm was visible" from Pietrucci's vantage point, and that, once Pietrucci squeezed the diaper bag, he "lifted the unzipped cover and observed the butt of a hand gun in the bag." However, Pietrucci testified that the bag was only partially closed and that he did not have to do anything other than put the bag onto the ground in order to observe the handgun.
See footnote 5, supra.
Relying on cases involving information of criminal activity provided by anonymous informants, the defendant argues that Martinez lacked sufficient indicia of reliability. We reject this assertion, if only because Martinez was not anonymous. See Commonwealth v. Barros,
The challenged portion of the prosecutor's closing argument began as follows. "The one thing we can all agree on is that there was an argument with a group and that the defendant was stopped with a gun." The prosecutor continued:
"So how do we know that he knew that that gun was in the bag? Because no one's arguing that the defendant owned a diaper bag, but he had the bag because the gun was in there, and how do we know that he knew the gun was in there?
"Well, first of all, like I said, he left as soon as the police arrived. He got out of there, and that was hoping that the argument that was going on would maintain the police's attention and he could get up to his house. The other reason we know that he knew what was in the gun [sic ] is because the officers were yelling at him to stop and he wouldn't stop.... So we know that he knew what was in that bag because he would not stop....
"The other reason we know it was in there is because the bag was open. You heard Officer Pietrucci testify that he took the bag off, he felt the extreme weight of it, put it down and he could see the gun right there. The defendant testifies that he saw Pietrucci unzip it. So how are you going to evaluate that?
"Well, when you need to evaluate who's being credible, I would ask you who's more biased in their recollection of that event? Because Officer Pietrucci was already told about a gun being in that bag. He was opening that bag. I would suggest to you it serves him no purpose to sit up here and tell you that bag was already open if it wasn't because he would have testified that he opened that bag
Case-law data current through December 31, 2025. Source: CourtListener bulk data.