COMMONWEALTH v. ROSA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant was convicted of assault and battery. The charges stemmed from an altercation that occurred on October 1, 2008. However, because the defendant did not appear for her arraignment, the case was not tried until April 2018. On appeal, the defendant challenges the sufficiency of the Commonwealth's evidence and claims that she was deprived of the effective assistance of counsel. We affirm.

1. Sufficiency of the evidence. There is no merit to the defendant's claim that the Commonwealth's evidence was insufficient to prove the offense of assault and battery. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence established the following.³ The victim, Janice Rosario, had a relationship with the defendant's former husband, Sergio Rosa, for approximately eight years. The two had a child who was seven years old at the time of the events in question. In 2008, Rosa and the defendant rekindled their relationship, and Rosa stopped dating Rosario. Rosario testified that she and Rosa remained friends and maintained an informal visitation agreement whereby their child spent Saturday nights with Rosa. However, Rosario had a “hostile” relationship with the defendant and was worried about the defendant's influence over her child. On the afternoon of September 30, 2008, she went to Rosa's apartment to discuss her concerns with him. When she arrived, Rosa opened the door and invited her inside. The defendant was present. Soon thereafter, the defendant became upset. She pulled Rosario's hair and hit her. When Rosa intervened, Rosario escaped and later reported the incident to the police.

On the basis of this evidence, the jury could have concluded beyond a reasonable doubt that the defendant had committed an assault and battery. See Latimore, 378 Mass. at 677-678.

2. Ineffective assistance of counsel. The defendant claims that her lawyer was ineffective for (1) failing to call Rosa to testify at trial, (2) failing to discuss the Commonwealth's pretrial probation offer with the defendant, (3) failing to prepare adequately for trial, and (4) having a contentious relationship with the trial judge. As the Commonwealth notes in its brief, ineffective assistance of counsel claims may not be resolved on direct appeal in the first instance, except in the rare case where the factual basis for the claims appears indisputably in the record. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006) (“[A] ‘claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction when the factual basis of the claim appears indisputably on the trial record.’ ․ But this exception is narrow” [citation omitted] ). Here, the factual basis for the defendant's ineffective assistance claims is not readily apparent. We have reviewed the transcript of the trial, and, as it does not appear that counsel's behavior fell measurably below that of an ordinary fallible lawyer, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we cannot properly address the defendant's allegations on the basis of the trial record alone.

Judgment affirmed.

FOOTNOTES

3.   The defendant testified to a different version of events, but, in determining the sufficiency of the evidence, we consider only the evidence that was presented in the Commonwealth's case-in-chief. See Commonwealth v. Veiovis, 477 Mass. 472, 474 (2017).