NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-599
COMMONWEALTH
vs.
ALEJANDRO SANTANA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In the early morning hours of December 30, 2020, the
victims, a husband and wife, were awoken by a noise inside their
home. The wife, assuming it was their cat, got out of bed and
saw two individuals inside her home walking towards her bedroom
wearing ski masks and holding what appeared to her to be rifles.
One of the intruders yelled at the victims and pointed a gun at
the wife's head. The husband charged at the other masked
individual. The intruders beat both victims with their guns.
The husband was able to push the bedroom door shut, and the wife
called 911. After the encounter, the husband found a shotgun
1As is our custom, we spell the defendant's name as it appears in the indictments. shell under a door in the area where he had fought with the two
intruders.
The defendant was convicted by a jury in the Superior Court
of entering a dwelling in the nighttime with the intent to
commit a felony while armed in violation of G. L. c. 266, § 18,
and of receiving a stolen motor vehicle in violation of G. L.
c. 269, § 28 (a). The defendant contends that the judge erred
in the admission of certain statements made by the coventurers
prior to and following the armed entry into the victims' home.
The defendant also claims error in the denial of his motion for
a required finding of not guilty. We affirm.
Discussion. 1. Statements of joint venturers. The
defendant takes issue with the admission of certain statements
made by participants in the crime both before and after the
armed entry into the victims' home. The first statement, which
was not objected to, was made by an unidentified member of the
group before the crime occurred. The group was discussing a
house, and the plan was "to go into a house to get some money,
to make some money." The defendant was participating in that
conversation. The second and third statements, which were
timely objected to, occurred as the group was leaving the crime
scene. One coventurer, Daniel Resende, said that he ended up
"involving himself in a fight with the old man" and another
2 coventurer, Daniel Pedrosa, said that he "pulled the trigger but
the weapon was locked."
It is well settled that an exemption from the rule against
hearsay exists "whereby statements by joint venturers are
admissible against each other if the statements are made both
during the pendency of the cooperative effort and in furtherance
of its goal" (quotation and citation omitted). Commonwealth v.
Samia, 492 Mass. 135, 142 (2023). See Mass. G. Evid.
§ 801(d)(2)(E) (2021). In order to admit the statement of a
joint venturer, "the judge must make a preliminary
determination, based on a preponderance of the evidence, other
than the out-of-court statement itself, that the statement was
made during, and in furtherance of, a joint venture between the
declarant and the defendant" (quotation and citation omitted).
Commonwealth v. Robertson, 489 Mass. 226, 230-231 (2022). If
the judge admits the statements, the jury is then instructed
that it may consider the statements but only if they find that a
joint venture existed independent of the statements themselves,
and that the statements were made in furtherance of the joint
venture. See Commonwealth v. Rakes, 478 Mass. 22, 37 (2017).
"We review a judge's evidentiary ruling for abuse of
discretion." Commonwealth v. Brea, 488 Mass. 150, 159 (2021).
3 The defendant contends that the judge erred in admitting
the statements because there was insufficient evidence that the
statements were made during a cooperative effort between the
defendant and the declarants. The defendant also contends that
the second and third statements, made after the crime occurred,
were narrative in nature and not made in furtherance of any
criminal venture. We are not persuaded by either of these
contentions.
The Commonwealth presented enough evidence, apart from the
statements themselves, that the defendant was part of a joint
venture to rob the victims' home. The defendant was friends
with the participants of the crime -- this was not a group of
strangers that the defendant happened to come upon who were
planning to break into a home to obtain cash. The evening began
at the defendant's home, and the defendant and his friends were
told that they all needed to leave. This prompted the defendant
and his friends to canvas the area in search of a car and money.
A short time later, the members of the group returned to the
defendant's home with a stolen van and a weapon. The group then
pooled their money to rent a hotel room. Once inside the hotel
room, the defendant participated with others in a conversation
about going into a home and getting money. It was during this
conversation that the defendant moved the stolen van away from
4 the hotel room to the far corner of the parking lot and returned
to the hotel room wearing a face mask.
Next, the defendant drove with the others to the victims'
home where two of the participants, Daniel Resende and Daniel
Pedrosa, exited the van holding shotguns and wearing masks.
After the rest of the group headed toward the victims' home, the
defendant exited the van, walked up the street, and returned.
Shortly thereafter, several members of the group came back to
the van, running from the direction of the house. It was at
this time the second set of challenged statements were made.
Upon entering the van, Resende told the driver to leave quickly.
Resende and Pedroso then explained on the ride back that there
was a confrontation with an "old man" and that, during the
confrontation, Pedrosa attempted to fire his gun.
After the group returned to the hotel, the defendant left
and returned a short while later with a truck,2 which he parked
next to the van. Finally, less than twelve hours after the
armed entry, the defendant was stopped by the police driving the
truck. During the stop, police found two shotguns (one of which
later was discovered to contain deoxyribonucleic acid [DNA]
2 The owner of the truck testified that the truck was taken, without his permission, from his driveway that night. He also testified that he did not know the defendant or any of the coventurers.
5 matching the husband), shotgun ammunition, and a bag of spent
shotgun shells inside the cab of the truck.
Given the totality of this evidence, the judge acted within
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-599
COMMONWEALTH
vs.
ALEJANDRO SANTANA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In the early morning hours of December 30, 2020, the
victims, a husband and wife, were awoken by a noise inside their
home. The wife, assuming it was their cat, got out of bed and
saw two individuals inside her home walking towards her bedroom
wearing ski masks and holding what appeared to her to be rifles.
One of the intruders yelled at the victims and pointed a gun at
the wife's head. The husband charged at the other masked
individual. The intruders beat both victims with their guns.
The husband was able to push the bedroom door shut, and the wife
called 911. After the encounter, the husband found a shotgun
1As is our custom, we spell the defendant's name as it appears in the indictments. shell under a door in the area where he had fought with the two
intruders.
The defendant was convicted by a jury in the Superior Court
of entering a dwelling in the nighttime with the intent to
commit a felony while armed in violation of G. L. c. 266, § 18,
and of receiving a stolen motor vehicle in violation of G. L.
c. 269, § 28 (a). The defendant contends that the judge erred
in the admission of certain statements made by the coventurers
prior to and following the armed entry into the victims' home.
The defendant also claims error in the denial of his motion for
a required finding of not guilty. We affirm.
Discussion. 1. Statements of joint venturers. The
defendant takes issue with the admission of certain statements
made by participants in the crime both before and after the
armed entry into the victims' home. The first statement, which
was not objected to, was made by an unidentified member of the
group before the crime occurred. The group was discussing a
house, and the plan was "to go into a house to get some money,
to make some money." The defendant was participating in that
conversation. The second and third statements, which were
timely objected to, occurred as the group was leaving the crime
scene. One coventurer, Daniel Resende, said that he ended up
"involving himself in a fight with the old man" and another
2 coventurer, Daniel Pedrosa, said that he "pulled the trigger but
the weapon was locked."
It is well settled that an exemption from the rule against
hearsay exists "whereby statements by joint venturers are
admissible against each other if the statements are made both
during the pendency of the cooperative effort and in furtherance
of its goal" (quotation and citation omitted). Commonwealth v.
Samia, 492 Mass. 135, 142 (2023). See Mass. G. Evid.
§ 801(d)(2)(E) (2021). In order to admit the statement of a
joint venturer, "the judge must make a preliminary
determination, based on a preponderance of the evidence, other
than the out-of-court statement itself, that the statement was
made during, and in furtherance of, a joint venture between the
declarant and the defendant" (quotation and citation omitted).
Commonwealth v. Robertson, 489 Mass. 226, 230-231 (2022). If
the judge admits the statements, the jury is then instructed
that it may consider the statements but only if they find that a
joint venture existed independent of the statements themselves,
and that the statements were made in furtherance of the joint
venture. See Commonwealth v. Rakes, 478 Mass. 22, 37 (2017).
"We review a judge's evidentiary ruling for abuse of
discretion." Commonwealth v. Brea, 488 Mass. 150, 159 (2021).
3 The defendant contends that the judge erred in admitting
the statements because there was insufficient evidence that the
statements were made during a cooperative effort between the
defendant and the declarants. The defendant also contends that
the second and third statements, made after the crime occurred,
were narrative in nature and not made in furtherance of any
criminal venture. We are not persuaded by either of these
contentions.
The Commonwealth presented enough evidence, apart from the
statements themselves, that the defendant was part of a joint
venture to rob the victims' home. The defendant was friends
with the participants of the crime -- this was not a group of
strangers that the defendant happened to come upon who were
planning to break into a home to obtain cash. The evening began
at the defendant's home, and the defendant and his friends were
told that they all needed to leave. This prompted the defendant
and his friends to canvas the area in search of a car and money.
A short time later, the members of the group returned to the
defendant's home with a stolen van and a weapon. The group then
pooled their money to rent a hotel room. Once inside the hotel
room, the defendant participated with others in a conversation
about going into a home and getting money. It was during this
conversation that the defendant moved the stolen van away from
4 the hotel room to the far corner of the parking lot and returned
to the hotel room wearing a face mask.
Next, the defendant drove with the others to the victims'
home where two of the participants, Daniel Resende and Daniel
Pedrosa, exited the van holding shotguns and wearing masks.
After the rest of the group headed toward the victims' home, the
defendant exited the van, walked up the street, and returned.
Shortly thereafter, several members of the group came back to
the van, running from the direction of the house. It was at
this time the second set of challenged statements were made.
Upon entering the van, Resende told the driver to leave quickly.
Resende and Pedroso then explained on the ride back that there
was a confrontation with an "old man" and that, during the
confrontation, Pedrosa attempted to fire his gun.
After the group returned to the hotel, the defendant left
and returned a short while later with a truck,2 which he parked
next to the van. Finally, less than twelve hours after the
armed entry, the defendant was stopped by the police driving the
truck. During the stop, police found two shotguns (one of which
later was discovered to contain deoxyribonucleic acid [DNA]
2 The owner of the truck testified that the truck was taken, without his permission, from his driveway that night. He also testified that he did not know the defendant or any of the coventurers.
5 matching the husband), shotgun ammunition, and a bag of spent
shotgun shells inside the cab of the truck.
Given the totality of this evidence, the judge acted within
his discretion in determining, by a preponderance of the
evidence, that the defendant was part of a joint venture to rob
the victims' home. There is no dispute that the first
statement, regarding going into a home to get cash, was made in
furtherance of the joint venture, and there was testimony
indicating the defendant participated in that conversation.
Thus, there was no error, much less a substantial risk of a
miscarriage of justice, in admitting the first statement. See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). As to the
second and third statements, made after the armed entry, those
statements were also made in furtherance of the crime. See
Commonwealth v. Winquist, 474 Mass. 517, 523 (2016) ("our
appellate courts thus far have deemed admissible statements made
by joint venturers during the so-called concealment phase of
their criminal enterprise when such phase is relatively close in
time to the commission of the crime"). The statements by
Resende and Pedroso were made while the group was leaving the
crime scene and established the need to get rid of the evidence
(the shotguns). Therefore, the judge likewise did not err in
the admission of the second and third statements.
6 2. Sufficiency of the evidence. a. Armed entry. The
Commonwealth proceeded at trial on the theory that the defendant
aided and abetted the armed entry into the victims' home and
thus was guilty of the crime as a joint venturer. The defendant
argues that the evidence was insufficient to convict him of
either armed entry into a dwelling with the intent to commit a
felony or receiving a stolen motor vehicle. In reviewing the
denial of a motion for a required finding of not guilty, we must
determine "whether, after viewing the evidence in the light most
favorable to the [prosecution], any rational trier of fact could
have found [the defendant] to be criminally responsible beyond a
reasonable doubt." Commonwealth v. Cullen, 395 Mass. 225, 228
(1985). We have said that "[i]nferences drawn from
circumstantial evidence need not be inescapable or necessary, so
long as they are reasonable, possible and not unwarranted
because too remote. . ." (quotations and citation omitted). Id.
at 230.
The elements of the crime of entry into a dwelling during
the nighttime while armed with the intent to commit a felony are
as follows: (1) the premises entered was the dwelling of
another; (2) the defendant entered into the dwelling; (3) the
defendant was armed with a dangerous weapon; (4) the defendant
had the intent to commit a felony; and (5) the entry occurred in
7 the nighttime. See G. L. c. 266, § 18. The defendant does not
challenge that there was sufficient evidence that Pedroso and
Resende, the two armed intruders, committed the armed entry.
Rather, he argues that there was insufficient evidence that he
aided and abetted the crime. To establish the defendant's guilt
as a joint venturer to the armed entry, the Commonwealth must
prove "beyond a reasonable doubt that the defendant knowingly
participated in the commission of the crime charged, alone or
with others, with the intent required for that offense."
Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009), abrogated in
part on other grounds by Commonwealth v. Britt, 465 Mass. 87, 99
(2013). We note that a defendant's presence at the scene of the
crime, general knowledge that a crime will be committed, or
association with the perpetrators of the crime, do not by
themselves sufficiently demonstrate a joint venture. See
Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 472 (2014).
Rather, the Commonwealth must introduce "additional evidence
which implicates the defendant in the crime." Commonwealth v.
Sepheus, 468 Mass. 160, 167 (2014), quoting Commonwealth v.
Saez, 21 Mass. App. Ct. 408, 411 (1986). This evidence may
include proof that codefendants acted in a "coordinated
fashion," Commonwealth v. McCray, 93 Mass. App. Ct. 835, 843
(2018), or that the defendant "agree[d] to stand by at, or near
8 the scene of the crime to act as a lookout, or to provide aid or
assistance in committing the crime, or in escaping, if such help
[became] necessary" (citation omitted). Commonwealth v.
Simpkins, 470 Mass. 458, 462 (2015).
Here, examining as we must the evidence in the light most
favorable to the Commonwealth, for the reasons stated above,
there was sufficient evidence for a jury to find beyond a
reasonable doubt that the defendant knowingly and intentionally
participated in the armed entry into the victims' home. The
evidence, along with reasonable inferences therefrom, showed
that the defendant and others planned the armed entry into the
victims' home. The planning for the crime began when the
defendant and his friends were told that they needed to leave
his home. Thus, the group all shared a common motive -- the
need for quick cash. The defendant and others in the group went
into the Worcester area in search of a car and money and
returned later that evening with a stolen van and a weapon. The
group pooled their money and rented a hotel room, where the
defendant participated in the plan to break into a home and get
money. In fact, during the planning phase of the crime, the
defendant took the affirmative step of moving the stolen van
away from the hotel room to the far corner of the parking lot,
presumably to distance the group from the stolen van. When he
9 returned to the hotel room, the defendant was wearing a face
mask. Next, the defendant left with the group in the stolen
van, which contained two shotguns. Two of the participants
exited the van with the shotguns in their arms, and the
defendant exited the van shortly thereafter and walked up and
down the street. After the crime, the defendant left the hotel
room and returned with another stolen vehicle (the truck). The
defendant, wearing rubber gloves, was stopped by the police
driving the stolen truck and two shotguns were found inside.
This evidence was more than sufficient for a rational jury to
find the defendant participated in the planning of the armed
entry into the victims' home, in its execution by acting as a
lookout, and in the disposal of the evidence.
b. Receiving a stolen motor vehicle. The defendant claims
that there was insufficient evidence to establish that he knew
that he was in possession of a stolen vehicle. The crime of
possession of a stolen motor vehicle under G. L. c. 266,
§ 28 (a), requires that "(1) the motor vehicle is stolen;
(2) the defendant possessed the motor vehicle; and (3) the
defendant knew that the motor vehicle was stolen." Commonwealth
v. Aponte, 71 Mass. App. Ct. 758, 760 (2008). The defendant
claims that there was insufficient evidence of the third
element, knowledge. Again, we disagree.
10 In the light most favorable to the Commonwealth, the jury
could have found that, during the evening of December 29, 2020,
the defendant and his friends were told to leave the defendant's
home and subsequently went out to find money and a car. The
group, including the defendant, were in a stolen van a few hours
later. In the early morning hours of December 30th, the
defendant was driving his own vehicle when police stopped him
for driving without a valid license and towed his vehicle. Less
than two hours later, the defendant returned to the hotel in a
truck, taken without the owner's permission. That same
afternoon, police once again stopped the defendant as he was
exiting the driver's seat of the stolen truck, and he was
wearing black rubber nitrile gloves. When questioned by police,
the defendant said that a friend gave him the truck but that he
could not tell them the name of his friend. During further
questioning about driving a stolen truck with guns and
ammunition inside, the defendant acknowledged that the truck was
stolen and only denied knowing that the guns and ammunition were
present in the stolen truck.
11 The evidence was more than sufficient to support the defendant's
conviction of receiving a stolen motor vehicle.
Judgments affirmed.
By the Court (Meade, Neyman & Walsh, JJ.3),
Clerk
Entered: December 9, 2025.
3 The panelists are listed in order of seniority.