Heard: May 4, 2018.
found and returned in the Superior Court Department on March
31, 2009. Following review by this court, 86 Mass.App.Ct.
1103 (2014), a motion for a new trial, filed on August 8,
2016, was heard by Kathe M. Tuttman, J.
Jeffrey G. Harris for the defendant.
K. Walsh, Assistant District Attorney, for the Commonwealth.
Present: Agnes, Neyman, & Sacks, JJ.
case, we are asked to determine whether the act of forcing a
person to penetrate her own genital opening constitutes rape
within the meaning of G. L. c. 265, § 22. We hold that
it does, and thus affirm the order denying the
defendant's motion for new trial.
a jury trial in the Superior Court, the defendant, Reinaldo
Prado, was convicted of one count of aggravated rape, see G.
L. c. 265, § 22 (a.), three counts of armed robbery, see
G. L. c. 265, § 17, and three counts of witness
intimidation, see G. L. c. 268, § 13B. Represented by
the same attorney he had at trial, the defendant appealed. A
panel of this court affirmed the judgments in a decision
issued pursuant to our rule 1:28. See Commonwealth
v. Prado, 86 Mass.App.Ct. 1103 (2014) .
than two years later, the defendant, represented by new
counsel, filed a motion for new trial, claiming that his
trial counsel was ineffective for (a) failing to argue that
G. L. c. 265, § 22, does not contemplate rape by
compelled self-penetration; and (b) failing to challenge the
sufficiency of the evidence of armed robbery where the
Commonwealth proved only that the defendant used a BB gun and
not a firearm as alleged in the indictment. Following a
hearing, the judge issued a written memorandum of decision
and order denying the motion for new trial. The defendant now
Facts from trial.
charges against the defendant arose from two robberies and
sexual attacks that occurred in Burlington and Tewksbury on
January 24 and 25, 2009. In both instances, the defendant
responded to advertisements for adult services on the
Internet Web site "Craigslist," arranged to meet
the victims at a hotel, robbed them at gunpoint, and
threatened to find or to kill them if they contacted the
police. With respect to the January 24 incident,
the defendant was convicted of aggravated rape for forcing
the victim to put her fingers into her vagina. Specifically,
during the robbery he pulled out a black gun, backed the
victim into a computer chair in the hotel room, touched her
breast, and emptied the contents of her purse onto the bed.
After the victim grabbed her engagement ring from among those
items, the defendant directed her at gunpoint to insert her
fingers into her vagina. The victim did so, against her
evidence at trial was corroborated through, among other
things, (a) a surveillance video recording; (b) the
defendant's statements to the police; (c) the retrieval
of several items from the defendant and from his truck,
including a BB gun, a box of commercial grade electrical zip
ties consistent with those used to restrain two of the
victims, a cellular telephone (cell phone) belonging to one
of the victims, handwritten telephone numbers for other
Craigslist advertisements offering adult services, and papers
bearing the telephone number of one of the victims and the
Burlington hotel address; and (d) the retrieval of another
cell phone, laptop computers, ...