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-849
COMMONWEALTH
vs.
CORNELIO L. CONLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Cornelio L. Conley, was convicted after a
jury trial in the Boston Municipal Court of one count of assault
and battery on a police officer and one count of resisting
arrest. On appeal, he challenges only his conviction for
resisting arrest, arguing that the evidence was insufficient and
that two leading questions to the Commonwealth's police officer
witnesses created a substantial risk of a miscarriage of
justice. We affirm.
Background. A number of Boston police officers were
dispatched to the Boston Public Library. The first to arrive,
Officer Arthur Green, who was in uniform, told the defendant "to
turn around and put his hands behind his back." While Green did not tell the defendant that he was under arrest, he testified
that "when you place somebody under arrest, you tell them to
turn around and put their hands behind their back." The
defendant did not comply; instead, he "[w]hipped" a tarp in
Green's direction, hitting him in the face. Green then sprayed
the defendant with pepper spray. The defendant, moving away
from Green, struck another responding officer, Green's partner,
in the face. The officers pursued the defendant, and a
prolonged struggle took place; after more officers arrived on
the scene, they were able to place the defendant in handcuffs.
Multiple officers sustained injuries during the altercation that
required medical treatment. The defendant also suffered
injuries to his face and ribs.
Discussion. 1. Sufficiency of the evidence. The
defendant contends the evidence was insufficient to support his
conviction of resisting arrest. We review the evidence in the
light most favorable to the Commonwealth to determine whether
any rational jury could have found the defendant guilty beyond a
reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979).
"[T]he crime [of resisting arrest] is committed, if at all,
at the time of the 'effecting' of an arrest." Commonwealth v.
Grandison, 433 Mass. 135, 145 (2001), quoting G. L. c. 268,
2 § 32B. An "arrest" requires satisfaction of all three of the
so-called "Grandison elements": "[1] an actual or constructive
seizure or detention of the person, [2] performed with the
intention to effect an arrest and [3] so understood by the
person detained." Commonwealth v. Soun, 82 Mass. App. Ct. 32,
34 (2012), quoting Grandison, supra.
The defendant argues a rational jury could not have found
that police had effected an actual arrest -- only a mere
investigatory, or Terry-type stop -- at the time the defendant
put up the alleged resistance. See Commonwealth v. Grant, 71
Mass. App. Ct. 205, 209 (2008) ("Fleeing from, or even
resisting, a stop or patfrisk does not constitute the crime of
resisting arrest"); Commonwealth v. Smith, 55 Mass. App. Ct.
569, 574 (2002) ("A stop for purposes of making a threshold
inquiry is not an arrest"). The defendant contends the arrest
did not occur until the officers placed him in handcuffs, and
because the evidence does not include any acts of resistance
after this point, his motion for a required finding of not
guilty should have been allowed.
"In view of the direct testimony by [officer witness] of
the officers' intent to arrest" the defendant, we think "no
serious argument can be made that the second Grandison element
was not met." Soun, 82 Mass. App. Ct. at 36. Contrast Smith,
3 55 Mass. App. Ct. at 575-576 (evidence insufficient to support
conviction of resisting arrest where responding officer
"testified that his intent at the time was only to make a
threshold inquiry"). We focus on the first and third Grandison
elements.
a. Proof of seizure. "[A]n arrest may occur even if the
police do not make a formal arrest." Commonwealth v. Sanderson,
398 Mass. 761, 766 (1986). Furthermore, "police do not need to
use the word 'arrest' in order for there to be an arrest . . .
Rather, the test is whether a reasonable person would have
understood that he was under arrest." Commonwealth v. Quintos
Q., 457 Mass. 107, 111 (2010). Here, the jury could have found
that when Green approached the defendant and told him "to turn
around and put his hands behind his back," a reasonable person
in the defendant's position would have understood that Green
intended to effect an arrest by handcuffing him. See Soun, 82
Mass. App. Ct. at 35-36 ("A reasonable person would not have
felt free to walk away when Officer Parousis ordered him to turn
around and place his hands behind his back").
b. Understanding of person accused. "The standard for
determining whether a defendant understood that he was being
arrested is objective -- whether a reasonable person in the
defendant's circumstances would have so understood." Grant, 71
4 Mass. App. Ct. at 208. "While it is not necessary to use the
word 'arrest' when taking a defendant into custody, in most
instances there is some form of communication between the police
officer and the person" (quotations and citations omitted). Id.
at 209. See Soun, 82 Mass. App. Ct. at 36 ("Other phrases and
situations commonly associated with arrest can create the
required level of understanding").
In this case, following the officer's order to the
defendant to turn around and put his hands behind his back --
which "viewed objectively . . . is commonly associated with the
initial phase of an arrest," Soun, 82 Mass. App. Ct. at 36
-- the defendant acted belligerently toward officers, was pepper
sprayed and pursued, and engaged in a physical struggle with
multiple responding officers. Considering this combination of
circumstances in the light most favorable to the Commonwealth,
"a police command to turn around and put one's hands behind
one's back reasonably could not be understood as simply a
detention for a threshold inquiry." Id. at 37. The evidence
permitted the jury to find that a reasonable person in the
defendant's shoes would have understood he was under arrest
before he "[w]hipped" the tarp at Green, and certainly by the
time he struck the second officer and engaged in a struggle that
5 injured several others. The evidence was sufficient to support
the conviction of resisting arrest.
2. Leading questions. The defendant also argues his
conviction for resisting arrest should be reversed because the
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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-849
COMMONWEALTH
vs.
CORNELIO L. CONLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Cornelio L. Conley, was convicted after a
jury trial in the Boston Municipal Court of one count of assault
and battery on a police officer and one count of resisting
arrest. On appeal, he challenges only his conviction for
resisting arrest, arguing that the evidence was insufficient and
that two leading questions to the Commonwealth's police officer
witnesses created a substantial risk of a miscarriage of
justice. We affirm.
Background. A number of Boston police officers were
dispatched to the Boston Public Library. The first to arrive,
Officer Arthur Green, who was in uniform, told the defendant "to
turn around and put his hands behind his back." While Green did not tell the defendant that he was under arrest, he testified
that "when you place somebody under arrest, you tell them to
turn around and put their hands behind their back." The
defendant did not comply; instead, he "[w]hipped" a tarp in
Green's direction, hitting him in the face. Green then sprayed
the defendant with pepper spray. The defendant, moving away
from Green, struck another responding officer, Green's partner,
in the face. The officers pursued the defendant, and a
prolonged struggle took place; after more officers arrived on
the scene, they were able to place the defendant in handcuffs.
Multiple officers sustained injuries during the altercation that
required medical treatment. The defendant also suffered
injuries to his face and ribs.
Discussion. 1. Sufficiency of the evidence. The
defendant contends the evidence was insufficient to support his
conviction of resisting arrest. We review the evidence in the
light most favorable to the Commonwealth to determine whether
any rational jury could have found the defendant guilty beyond a
reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979).
"[T]he crime [of resisting arrest] is committed, if at all,
at the time of the 'effecting' of an arrest." Commonwealth v.
Grandison, 433 Mass. 135, 145 (2001), quoting G. L. c. 268,
2 § 32B. An "arrest" requires satisfaction of all three of the
so-called "Grandison elements": "[1] an actual or constructive
seizure or detention of the person, [2] performed with the
intention to effect an arrest and [3] so understood by the
person detained." Commonwealth v. Soun, 82 Mass. App. Ct. 32,
34 (2012), quoting Grandison, supra.
The defendant argues a rational jury could not have found
that police had effected an actual arrest -- only a mere
investigatory, or Terry-type stop -- at the time the defendant
put up the alleged resistance. See Commonwealth v. Grant, 71
Mass. App. Ct. 205, 209 (2008) ("Fleeing from, or even
resisting, a stop or patfrisk does not constitute the crime of
resisting arrest"); Commonwealth v. Smith, 55 Mass. App. Ct.
569, 574 (2002) ("A stop for purposes of making a threshold
inquiry is not an arrest"). The defendant contends the arrest
did not occur until the officers placed him in handcuffs, and
because the evidence does not include any acts of resistance
after this point, his motion for a required finding of not
guilty should have been allowed.
"In view of the direct testimony by [officer witness] of
the officers' intent to arrest" the defendant, we think "no
serious argument can be made that the second Grandison element
was not met." Soun, 82 Mass. App. Ct. at 36. Contrast Smith,
3 55 Mass. App. Ct. at 575-576 (evidence insufficient to support
conviction of resisting arrest where responding officer
"testified that his intent at the time was only to make a
threshold inquiry"). We focus on the first and third Grandison
elements.
a. Proof of seizure. "[A]n arrest may occur even if the
police do not make a formal arrest." Commonwealth v. Sanderson,
398 Mass. 761, 766 (1986). Furthermore, "police do not need to
use the word 'arrest' in order for there to be an arrest . . .
Rather, the test is whether a reasonable person would have
understood that he was under arrest." Commonwealth v. Quintos
Q., 457 Mass. 107, 111 (2010). Here, the jury could have found
that when Green approached the defendant and told him "to turn
around and put his hands behind his back," a reasonable person
in the defendant's position would have understood that Green
intended to effect an arrest by handcuffing him. See Soun, 82
Mass. App. Ct. at 35-36 ("A reasonable person would not have
felt free to walk away when Officer Parousis ordered him to turn
around and place his hands behind his back").
b. Understanding of person accused. "The standard for
determining whether a defendant understood that he was being
arrested is objective -- whether a reasonable person in the
defendant's circumstances would have so understood." Grant, 71
4 Mass. App. Ct. at 208. "While it is not necessary to use the
word 'arrest' when taking a defendant into custody, in most
instances there is some form of communication between the police
officer and the person" (quotations and citations omitted). Id.
at 209. See Soun, 82 Mass. App. Ct. at 36 ("Other phrases and
situations commonly associated with arrest can create the
required level of understanding").
In this case, following the officer's order to the
defendant to turn around and put his hands behind his back --
which "viewed objectively . . . is commonly associated with the
initial phase of an arrest," Soun, 82 Mass. App. Ct. at 36
-- the defendant acted belligerently toward officers, was pepper
sprayed and pursued, and engaged in a physical struggle with
multiple responding officers. Considering this combination of
circumstances in the light most favorable to the Commonwealth,
"a police command to turn around and put one's hands behind
one's back reasonably could not be understood as simply a
detention for a threshold inquiry." Id. at 37. The evidence
permitted the jury to find that a reasonable person in the
defendant's shoes would have understood he was under arrest
before he "[w]hipped" the tarp at Green, and certainly by the
time he struck the second officer and engaged in a struggle that
5 injured several others. The evidence was sufficient to support
the conviction of resisting arrest.
2. Leading questions. The defendant also argues his
conviction for resisting arrest should be reversed because the
prosecutor asked leading questions to two officers, eliciting
hearsay testimony that they responded to the library because of
an "incident."
Prior to trial, the defendant filed a motion in limine to
preclude police witnesses from testifying about the content of
the 911 call or the police radio dispatch to which they
responded. The judge allowed the motion, specifically rejecting
the prosecutor's suggestion to ask about responding to a
"disturbance"; rather, the judge told the prosecutor to "have
the officers testify that as a result of a radio call they
responded to the Boston Public Library."
At trial, the prosecutor asked the first witness, Officer
Robert Lerro, whether he "respond[ed] to an incident" at the
library; he answered, "Yes, ma'am." Similarly, the prosecutor
asked Green whether he "respond[ed] to an incident," and he said
he did. She then asked, "[H]ow are you alerted to an incident?"
He responded, "It was a radio call." The defendant did not
object, and now asserts that the testimony was admitted in
error, creating a substantial risk of a miscarriage of justice.
6 We discern no error. It was proper for the officers to
testify "that [they] arrived at the area as a result of a radio
dispatch." Commonwealth v. Wilson, 441 Mass. 390, 400 (2004).
See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting
McCormick on Evidence § 249, at 734 (3d ed. 1984) ("an arresting
or investigating officer should not be put in the false position
of seeming just to have happened upon the scene; he should be
allowed some explanation of his presence and conduct"). And it
was not improper for the prosecutor to use the word "incident."
The word was sufficiently anodyne to avoid prejudicing the
defendant while establishing a foundation for the officers'
presence at the library that day. See Commonwealth v. Parreira,
72 Mass. App. Ct. 308, 320 n.13 (2008) (not error for prosecutor
to use "incident" to refer to alleged rapes). The lack of an
objection from defense counsel, who had focused on this issue
prior to trial and obtained a favorable ruling from the judge,
suggests that the manner of questioning did not prejudice the
defendant. See Commonwealth v. Lyons, 426 Mass. 466, 471
(1998).
By asking brief, leading questions, the prosecutor ensured
that the officers did not testify about the content of the
dispatch. "The allowance of leading questions is almost wholly
within the discretion of the trial judge." Commonwealth v.
7 Blondin, 324 Mass. 564, 573 (1949), cert. denied, 339 U.S. 984
(1950). The way the questions were framed ensured that the
officers would not "relate historical aspects of the case,
replete with hearsay statements in the form of complaints and
reports" (quotation and citation omitted), not relevant to
establish the reason for the police presence. Commonwealth v.
Rupp, 57 Mass. App. Ct. 377, 383 (2003) (permissible for police
officer to testify he received radio transmission "[r]egarding a
firearm").
The prosecutor's questioning and the officers' testimony
were proper. "Where there is no error, . . . there can be no
risk of a miscarriage of justice." R.B., petitioner, 479 Mass.
712, 718 (2018), citing Commonwealth v. Randolph, 438 Mass. 290,
303 (2002).
Judgments affirmed.
By the Court (Massing, Sacks & Allen, JJ.1),
Clerk
Entered: January 15, 2026.
1 The panelists are listed in order of seniority.