This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial, the defendant was convicted of one count of distribution of heroin, in violation of G. L. c. 94C § 32( a ), and one count of a drug violation near a school or park, in violation of G. L. c. 94C § 32J. On appeal, he argues that the evidence at trial supported equal but inconsistent propositions and consequently was insufficient to establish his guilt of the charged offenses beyond a reasonable doubt. We affirm.
We review the facts in the light most favorable to the Commonwealth, under the established Latimore standard. On March 23, 2012, in the afternoon, Police Captain Paul Oliveira, then a lieutenant with the New Bedford police department's narcotics division, was conducting surveillance on a house on Woodlawn Street as a result of many neighbors' complaints about drug activity. Oliveira observed a white Chevy Tracker pull in front of the house. Within a couple of minutes, the defendant, with whom Oliveira was familiar, came out of the house and approached the car on the female driver's side. The defendant leaned into the vehicle and, seconds later, pulled back out of the vehicle holding money in his hand. Within seconds, the car pulled away and the defendant reentered the house.
Oliveira followed the white Chevy; a different group of police officers, including Detective John Lagoa, later stopped the Chevy for a traffic violation. Lagoa noticed that the driver seemed very nervous, and was breathing rapidly. He told her that she had been observed meeting with the defendant. Eventually, she took a bag containing 1.7 grams of heroin out of her waistband and handed it to the officer.
Oliveira immediately returned to Woodlawn Street where he saw the defendant leaving a corner store with a pack of cigarettes in his hand. The defendant went back to the same Woodlawn Street house and then, after a time, left again. He was arrested and searched; the police recovered $194 from his person. After learning that the defendant's girlfriend had several outstanding warrants, the police entered the defendant's apartment, arrested the girlfriend, and observed a digital scale and a hypodermic needle on a table in the apartment.
New Bedford police Lieutenant Dennis Ledo, testified as an expert witness for the Commonwealth, and stated that heroin sells for roughly $100 per gram in New Bedford; scales are used by drug distributors to weigh illegal drugs; and cash seized in connection with narcotics and paraphernalia used in preparing narcotics would be the proceeds from a narcotics sale. After hearing a hypothetical question describing the facts in this case, including the surveillance and the later seizure of drugs, Ledo also added that those facts " would be consistent with" the sale of heroin.
The defendant argues that the evidence equally supports at least three inferences: that the defendant was selling drugs to the driver of the car, that the defendant purchased drugs from the female driver and went upstairs into the apartment and used them with his girlfriend, or that the interaction between the defendant and the driver was an innocent exchange between people who are both heroin users, but who did not exchange drugs at the time.
The defendant bases his argument on the correct principle that " when the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to be established by legitimate proof." Commonwealth v. McLeod, 394 Mass. 727, 747, 477 N.E.2d 972 (1985). Nevertheless, that conclusion is warranted only if " the Commonwealth's evidence, however favorable, still requires a leap of conjecture with respect to essential elements of the crime charged in order to obtain a conviction." Commonwealth v. Latney, 44 Mass.App.Ct. 423, 426, 691 N.E.2d 601 (1998). When the sole question is one of " weight of a continuous chain of circumstantial evidence," ibid., " it is for the [fact finder] to determine where the truth lies, for the weight and credibility of the evidence is wholly within [his] province." Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005).
In this case, based on circumstantial evidence alone, a fact finder reasonably could infer that the defendant sold drugs to the female driver, without resorting to speculation. See Commonwealth v. Platt, 440 Mass. 396, 401, 798 N.E.2d 1005 (2003). Much like in Commonwealth v. Soto, 45 Mass.App.Ct. 109, 111, 112, 695 N.E.2d 683 (1998), the combination of facts, including the defendant and the female driver's " purposeful meeting"  that was " exceedingly brief," with the defendant reaching in and out of the car, coupled with the production of a small bag of narcotics by the female driver when she was stopped shortly after the encounter with the defendant tends to show that there was at least a transfer taking place. In addition, unlike the facts in cases such as Commonwealth v. Senati, 3 Mass.App.Ct. 304, 306, 327 N.E.2d 906 (1975), and Commonwealth v. Reid, 29 Mass.App.Ct. 537, 539, 562 N.E.2d 1362 (1990), where the evidence was not sufficient to allow a reasonable inference of who was the buyer and who was the seller, here, Oliveira observed the defendant leaning out of the car holding money in his hand, making it more likely for the defendant to be the seller than the buyer in the transaction. The police also arrested the defendant, a short time later (although not immediately), possessing an amount of money corresponding roughly to the street value of the drugs seized from the female driver. The police also found a digital scale in the defendant's apartment which, according to the expert witness, suggested its use in drug distribution given all of the circumstances.
Although the other scenarios suggested by the defendant are not implausible, the Commonwealth " need not 'exclude every reasonable hypothesis of innocence to prove its case.'" Platt, 440 Mass. at 401. The inference that the defendant sold the heroin here need not " be necessary or inescapable, only reasonable and possible." Commonwealth v.Jones, 432 Mass. 623, 628, 737 N.E.2d 1247 (2000). We are satisfied ...