COMMONWEALTH v. WANDA PEREZ (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial, the defendant, Wanda Perez, was found guilty of possession with intent to distribute a class A substance, in violation of G. L. c. 94C, § 32 (a). On appeal, the defendant contends that the trial judge erred by denying her motion for a required finding of not guilty because there was insufficient evidence that the defendant (1) constructively possessed heroin and (2) intended to distribute it. We affirm.

Background. We summarize the facts the trial judge could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In November 2018, the Springfield police department began investigating drug-related activity from an apartment on Genesse Street in Springfield (apartment). During surveillance starting in mid-November, officers watched people approach, enter, and then leave the apartment, all within a few minutes, but they never saw the defendant. On November 30, 2018, officers applied for a warrant to search the apartment. The target of the search warrant was Artem Vasilevich, who was tried as a codefendant and similarly convicted of possession with intent to distribute a class A substance.¹

On December 5, 2018, approximately thirty minutes before the execution of the search warrant, one of the officers noticed a turquoise pickup truck parked near the apartment. A male passenger exited the truck, walked towards the apartment, and made a brief cell phone call before entering. One to two minutes later, the same man left the apartment and got back into the truck. Officers followed the truck and stopped it. The pursuing officers seized nine glassine bags of heroin with the word “fire” stamped on them, five from the male passenger's hand and four he had dropped on the floor of the truck.

Shortly after, the same officer surveilling the apartment saw a Hispanic woman exit the apartment with a “blue and black soft nylon lunch box or lunch bag.” The woman entered a gray Nissan Altima and drove away. Other officers followed, secured the vehicle, and identified the driver as Sherley Pena. The officers arrested Pena and searched the nylon bag, which yielded cocaine, heroin, a scale, packaging materials, jars, a “grinder,” around $60, and Pena's keys to the apartment. One of the officers testified that the bags of heroin seized from Pena were stamped with a word that “start[ed] with an F and end[ed] with an E․ Possibly fire.”

After Pena's arrest, the officers executed the search warrant at the apartment. Upon searching the front bedroom, the officers found the defendant sleeping in a bed with Vasilevich. Both were detained and handcuffed while the officers conducted the search of the front bedroom. Within the front bedroom, the officers saw stereotypical male and female clothing, two small glass pipes, a bong, a digital scale in the nightstand, and two pieces of mail addressed to the defendant at the apartment from two different senders. Additionally, the officers found a brown purse, which contained 126 glassine bags of heroin stamped “fire,” $40, a key that unlocked the rear door of the apartment, and an appointment card and medical card with the defendant's name on each. The officers also discovered a black and white purse in the front bedroom closet, which contained a cutting agent.²

In the rear bedroom, the officers found $1,562 in currency inside a green backpack. The search of the living room garnered a mail-in voter registration form with the defendant's name and the apartment's address handwritten into the form's prompt, “Address where you live in now.” In addition, when the officers searched the kitchen, they found plastic “blowout bags”³ in the kitchen trash and three scales in the adjacent pantry.

Discussion. In evaluating the denial of a motion for a required finding of not guilty, we review the evidence 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.” Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). A finding of guilty may be warranted “even though the inference of guilt from the facts established is not inescapable or necessary.” Commonwealth v. Anselmo, 33 Mass. App. Ct. 602, 604 (1992), quoting Commonwealth v. Gagnon, 408 Mass. 185, 200-201 (1990).

1. Constructive possession. The defendant contends that the Commonwealth failed to provide sufficient evidence of constructive possession because the defendant did not have knowledge of the heroin in the brown purse in the front bedroom. We disagree.

To prove constructive possession, “the Commonwealth [must] show knowledge coupled with the ability and intention to exercise dominion and control” (quotation and citation omitted). Commonwealth v. Boria, 440 Mass. 416, 418 (2003). The “Commonwealth has the burden of presenting evidence that establishes a ‘particular link’ between the defendant and the contraband for the purposes of proving constructive possession” (citation omitted). Commonwealth v. Proia, 92 Mass. App. Ct. 824, 831 (2018). Where contraband is found in a home or apartment, constructive possession may be established “in one of two ways: by linking the defendant to the contraband via other incriminating evidence, or by linking the defendant to the particular area of the dwelling in which the contraband was found” (quotation and citation omitted). Id.

Here, in the light most favorable to the Commonwealth, there was sufficient evidence to permit a rational trier of fact to find that the defendant constructively possessed the heroin found in the brown purse in the front bedroom. The officers found the defendant asleep in the same room as the brown purse containing 126 glassine bags of heroin. Significantly, the fact finder could link the defendant to both the apartment and the brown purse because the purse contained a key to the rear door of the apartment and two cards -- an appointment card and a medical card -- bearing the defendant's name. See Commonwealth v. Gill, 2 Mass. App. Ct. 653, 656-657 (1974) (sufficient evidence of constructive possession shown where officers found bags of heroin inside suitcoat jacket in defendant's bedroom closet, along with paraphernalia and personal identification papers in bedroom). In the light most favorable to the Commonwealth, this evidence was sufficient to establish a “particular link” between the defendant and the heroin in the brown purse, such that a fact finder could reasonably infer that the defendant constructively possessed the heroin (citation omitted).⁴ Proia, 92 Mass. App. Ct. at 831. The fact that there was no testimony about whether the purse was found in the open or hidden in the extensive clutter in the room does not undermine the evidence that the purse was the defendant's.

We are not persuaded by the defendant's argument that she could not have sold the heroin to the passenger of the turquoise truck because she must have been sleeping. In the light most favorable to the Commonwealth, the defendant could have gone to bed just after the sale. And, in any event, even if someone else in the apartment sold the heroin to the passenger, the purse containing the defendant's documents, the key, and the heroin was sufficient for a finding of constructive possession.

The defendant also emphasizes that the officer who testified that he found the appointment card and medical card bearing the defendant's name failed to seize or photograph them. By contrast, the officer took a photograph of a medical card belonging to Pena. To the extent the defendant's argument is that the officer's testimony was not credible, that was a determination for the trial judge to make. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) (“If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province”).

2. Intent to distribute. The defendant argues the Commonwealth failed to prove she intended to distribute heroin because there was evidence that someone other than the defendant controlled the apartment, the heroin, and its proceeds. We are not persuaded.

First, the quantity of 126 bags of heroin found in the brown purse supported an inference of intent to distribute. See Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 428 (1985) (“The quantity of a controlled substance alone may be sufficient circumstantial evidence to raise an inference of intent to distribute”). See also Gill, 2 Mass. App. Ct. at 657 (“The quantity of heroin [i.e., around one hundred bags], whether taken in conjunction with or considered apart from the cutting paraphernalia, was sufficient to warrant a finding of possession with intent to distribute”). Moreover, here, the Commonwealth also provided expert testimony that the quantity of heroin in the brown purse was inconsistent with personal use.

Second, the manner in which the heroin was packaged was consistent with an intent to distribute. See Commonwealth v. Roman, 414 Mass. 642, 645 (1993) (illegal drugs may be “ packaged in such a way as to suggest that the defendant intended to sell them rather than to use them personally”). Specifically, the heroin was branded “fire” and packaged in three half-packs, which, as the Commonwealth's expert testified, was indicative of sale, rather than personal use. See Commonwealth v. Burke, 44 Mass. App. Ct. 76, 79-80 (1997) (expert testimony that glassine packets were “used for sale and not for personal use” constituted evidence of intent to distribute [citation omitted]). The scales and blowout bags found in the kitchen and pantry were further evidence of intent to distribute.⁵ See LaPerle, 19 Mass. App. Ct. at 427 (cutting powder, scales, packaging materials, and drug paraphernalia show defendant's intent to distribute).

Taken together and in the light most favorable to the Commonwealth, the evidence was sufficient for a fact finder to reasonably conclude that the defendant constructively possessed the heroin with an intent to distribute. See Commonwealth v. Pratt, 407 Mass. 647, 653 (1990) (“In conjunction with the quantity of drugs found, the manner of packaging permitted an inference of an intent to distribute”).

Judgment affirmed.

FOOTNOTES

1.   Vasilevich appealed his conviction, which was affirmed by a different panel of this court in an unpublished memorandum and order. See Commonwealth v. Vasilevich, 106 Mass. App. Ct. 1108 (2025).

2.   At trial, an expert for the Commonwealth explained that a cutting agent is a powder added to the production of narcotics to increase the volume and decrease the potency of the narcotics.

3.   The Commonwealth's expert also explained that a blowout bag is a sandwich bag used to package illegal narcotics.

4.   We note that the Commonwealth did not need to prove the defendant exclusively possessed the heroin. See Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 556 (1991) (possession “need not be exclusive”).

5.   To the extent the defendant argues there was insufficient evidence to link the defendant to the scales and blowout bags in the kitchen and pantry, we disagree. See Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 238 (1997) (fact finder could infer from personal papers containing defendant's name found in bedroom bureau, along with apartment key found on defendant's person, that defendant was occupant of apartment and thus had “knowledge of the scale and lactose found in the kitchen”).