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Commonwealth v. Sylvia

Appeals Court of Massachusetts, Bristol

May 5, 2015

Commonwealth
v.
Michael Sylvia

Argued: January 9, 2015.

Indictment found and returned in the Superior Court Department on October 26, 2012.

The case was tried before Robert J. Kane, J.

Judgment affirmed.

Thomas C. Foley for the defendant.

Corey T. Mastin, Assistant District Attorney, for the Commonwealth.

Present: Katzmann, Sullivan, & Blake, JJ.

OPINION

Katzmann, J.

Having been convicted by a Superior Court jury of resisting arrest, the defendant appeals. He contends that the evidence was insufficient to support a conviction under the second prong of the resisting arrest statute, " using any other means which creates a substantial risk of causing bodily injury to such police officer or another." G. L. c. 268, § 32B( a )(2), inserted by St. 1995, c. 276. We affirm.

Background.

Under the familiar standard, on appeal the evidence is viewed in the light most favorable to the Commonwealth to determine whether " 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, 393 N.E.2d 370 (1979) (citation omitted).

Here, the analysis begins when Officer Kenneth Mendes advised the defendant that he was subject to arrest, and continues through the defendant's flight and physical resistance to the officer's efforts to place the defendant into physical custody. The

Page 341

officer first made contact with the defendant, for whom he had an arrest warrant, when, while patrolling in a cruiser with his partner in a high crime area, he noticed the defendant walking on a New Bedford street shortly before 2 a.m. The officer got out of the cruiser and told the defendant that he had lawful authority to place him under arrest. The defendant, saying " no" and shaking his head in a manner understood by the officer to mean " no," fled on foot. The officer observed the defendant continuously hold the waistband of his pants with one hand as he fled. Seeking to immobilize the defendant, the officer, while chasing him, deployed his " Taser" [1] to no effect. Eventually, the officer was able to grab onto the defendant's shoulder and jacket, but the defendant was able to turn and shuck the jacket. The foot pursuit continued, as the defendant maintained his hold on the waistband of his pants, through a parking lot and onto a public roadway under construction. There was no asphalt on the roadway. The conditions of the roadway included excavated dirt, steel plates, compacted dirt, and other construction site objects, such as barrels. As the defendant ran across the public roadway, he threw a metal object onto the street.[2] The defendant continued to flee but no longer held the waistband of his pants. He ran onto the sidewalk, crossed the public roadway again, and went into the aforementioned parking lot. The officer was able to catch the fatigued defendant and put him on the ground. On the ground, the officer ...


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