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-935
COMMONWEALTH
vs.
LEVON PIRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted by a District Court jury of
carrying a loaded firearm without a license, G. L. c. 269,
§ 10 (n), and carrying a firearm without a license, G. L.
c. 269, 10 (a). On appeal, the defendant contends that his
motion to suppress should have been allowed and that the trial
judge committed error by allowing the Commonwealth to introduce
evidence that a shooting had taken place in the area near the
defendant's home the day prior to the defendant's arrest and
certain video evidence. We affirm.
Motion to suppress. "[W]e accept the judge's subsidiary
findings of fact absent clear error but conduct an independent
review of [the judge's] ultimate findings and conclusions of law" (quotation and citation omitted). Commonwealth v. Meas,
467 Mass. 434, 440 (2014), cert. denied, 574 U.S. 858 (2014).
We summarize the facts as found by the judge, supplemented by
undisputed facts that the judge implicitly credited and are
consistent with his ruling. See Commonwealth v. Depiero, 473
Mass. 450, 452 n.3 (2016); Commonwealth v. Jones-Pannell, 472
Mass. 429, 431 (2015). In addition, we review de novo the
surveillance recordings and other documentary exhibits
introduced in evidence at the hearing. See Commonwealth v.
Tremblay, 480 Mass. 645, 656 (2018).
The judge found that Detective Almeida of the New Bedford
police department, after seeing the defendant, got out of his
vehicle and approached the defendant. Almeida was wearing plain
clothes with a police vest with white lettering, and his firearm
was holstered. Almeida said, "What's good Levon?" and the
defendant ran. Almeida began to run after the defendant.
Seconds later, Almeida saw the defendant with a gun and a
magazine attached to the gun. At that time, Almeida sent a
radio transmission stating, "[H]e's got a gun," and also yelled
at the defendant to "drop the gun." The defendant was
ultimately apprehended and arrested.
Because suppression is limited to evidence recovered due to
an unconstitutional search or seizure, we must consider when the
seizure occurred and whether it was constitutional. See
2 Commonwealth v. Palmer, 106 Mass. App. Ct. 47, 53, 55 (2025).
"To decide whether a person has been 'seized' in the
constitutional sense, 'we look at the totality of the
circumstances to determine whether a member of law enforcement
has "engaged in some show of authority" that a reasonable person
would consider coercive; that is, behavior "which could be
expected to command compliance, beyond simply identifying
[himself or herself] as police."'" Id. at 53, quoting
Commonwealth v. Matta, 483 Mass. 357, 362 (2019). Pursuit by
the police is not necessarily a seizure. "[T]he inquiry must be
whether, in the circumstances, a reasonable person would believe
that an officer would compel him or her to stay." Matta, supra
at 363. "[F]ollowing a person, presumably at a rate of speed
sufficient to keep him in sight, does not amount to a seizure
absent some additional assertion of authority, by direct verbal
communication ('stop') or otherwise (blocking, use of
flashers)." Commonwealth v. Franklin, 456 Mass. 818, 822
(2010).
Almeida's pursuit of an already running defendant did not
immediately constitute a seizure, as there was no evidence of
"some additional assertion of authority" or even that the
defendant knew Almeida was chasing after him. Id. The judge
found that the defendant never looked back and that the evidence
did not show that the defendant was aware that he was being
3 pursued. We agree with the motion judge that once Almeida
commanded the defendant to "drop the gun," a seizure occurred.
Furthermore, the seizure was constitutional, as it was
supported by a reasonable suspicion that the defendant was
unlawfully carrying a firearm without a license. See
Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).
"Reasonable suspicion may not be based on good faith or a hunch,
but on specific, articulable facts and inferences that follow
from the officer's experience." Id. "The test is an objective
one" (citation omitted). Id. At the time the pursuit began,
and prior to seeing the defendant with the firearm, Almeida had
entered the defendant's name into the Criminal Justice
Information System database and had learned that the defendant
did not have a Massachusetts license to carry firearms. Thus,
at the time Almeida saw the defendant with a firearm and
commanded him to drop the gun, there was not only reasonable
suspicion to stop the defendant but also probable cause to
believe that he was committing a crime.1 The motion to suppress
was properly denied.
1 The defendant contends that the judge found that Almeida saw the defendant's firearm prior to running after him, and that this finding was clearly erroneous. As Almeida did not seize the defendant until he commanded the defendant to "drop the gun" and the seizure was constitutional, we need not analyze the defendant's contention.
4 Trial evidentiary rulings. The defendant argues that the
evidence that a person had been shot the day before "in the
South End" where the defendant lived was improperly admitted
prior bad act evidence. Additionally, the defendant contends
that the evidence posed a risk of unfair prejudice greater than
the evidence's probative value. Because the defendant preserved
these issues via objection at trial, "we review the proceedings
below for prejudicial error" and note that "[a]n error is not
prejudicial if it did not influence the jury, or had but very
slight effect" (citations and quotation omitted). Commonwealth
v. Rodriguez, 92 Mass. App. Ct. 774, 780 (2018).
No prejudicial effect is apparent here. Video evidence
admitted at trial clearly shows the defendant throw a glittery
object over the fence in the same area where the police
testified to finding a gun. Therefore, even if admission of the
prior shooting was error, we conclude that the defendant was not
prejudiced. See Commonwealth v. Imbert, 479 Mass. 575, 587
(2018) (finding no prejudice where issue was collateral to
defendant's guilt and "likely did not matter to the jury's
verdict").
Furthermore, evidence of the prior shooting was admissible
to provide the jury with background information to understand
the reason why the police were monitoring certain online
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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-935
COMMONWEALTH
vs.
LEVON PIRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted by a District Court jury of
carrying a loaded firearm without a license, G. L. c. 269,
§ 10 (n), and carrying a firearm without a license, G. L.
c. 269, 10 (a). On appeal, the defendant contends that his
motion to suppress should have been allowed and that the trial
judge committed error by allowing the Commonwealth to introduce
evidence that a shooting had taken place in the area near the
defendant's home the day prior to the defendant's arrest and
certain video evidence. We affirm.
Motion to suppress. "[W]e accept the judge's subsidiary
findings of fact absent clear error but conduct an independent
review of [the judge's] ultimate findings and conclusions of law" (quotation and citation omitted). Commonwealth v. Meas,
467 Mass. 434, 440 (2014), cert. denied, 574 U.S. 858 (2014).
We summarize the facts as found by the judge, supplemented by
undisputed facts that the judge implicitly credited and are
consistent with his ruling. See Commonwealth v. Depiero, 473
Mass. 450, 452 n.3 (2016); Commonwealth v. Jones-Pannell, 472
Mass. 429, 431 (2015). In addition, we review de novo the
surveillance recordings and other documentary exhibits
introduced in evidence at the hearing. See Commonwealth v.
Tremblay, 480 Mass. 645, 656 (2018).
The judge found that Detective Almeida of the New Bedford
police department, after seeing the defendant, got out of his
vehicle and approached the defendant. Almeida was wearing plain
clothes with a police vest with white lettering, and his firearm
was holstered. Almeida said, "What's good Levon?" and the
defendant ran. Almeida began to run after the defendant.
Seconds later, Almeida saw the defendant with a gun and a
magazine attached to the gun. At that time, Almeida sent a
radio transmission stating, "[H]e's got a gun," and also yelled
at the defendant to "drop the gun." The defendant was
ultimately apprehended and arrested.
Because suppression is limited to evidence recovered due to
an unconstitutional search or seizure, we must consider when the
seizure occurred and whether it was constitutional. See
2 Commonwealth v. Palmer, 106 Mass. App. Ct. 47, 53, 55 (2025).
"To decide whether a person has been 'seized' in the
constitutional sense, 'we look at the totality of the
circumstances to determine whether a member of law enforcement
has "engaged in some show of authority" that a reasonable person
would consider coercive; that is, behavior "which could be
expected to command compliance, beyond simply identifying
[himself or herself] as police."'" Id. at 53, quoting
Commonwealth v. Matta, 483 Mass. 357, 362 (2019). Pursuit by
the police is not necessarily a seizure. "[T]he inquiry must be
whether, in the circumstances, a reasonable person would believe
that an officer would compel him or her to stay." Matta, supra
at 363. "[F]ollowing a person, presumably at a rate of speed
sufficient to keep him in sight, does not amount to a seizure
absent some additional assertion of authority, by direct verbal
communication ('stop') or otherwise (blocking, use of
flashers)." Commonwealth v. Franklin, 456 Mass. 818, 822
(2010).
Almeida's pursuit of an already running defendant did not
immediately constitute a seizure, as there was no evidence of
"some additional assertion of authority" or even that the
defendant knew Almeida was chasing after him. Id. The judge
found that the defendant never looked back and that the evidence
did not show that the defendant was aware that he was being
3 pursued. We agree with the motion judge that once Almeida
commanded the defendant to "drop the gun," a seizure occurred.
Furthermore, the seizure was constitutional, as it was
supported by a reasonable suspicion that the defendant was
unlawfully carrying a firearm without a license. See
Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).
"Reasonable suspicion may not be based on good faith or a hunch,
but on specific, articulable facts and inferences that follow
from the officer's experience." Id. "The test is an objective
one" (citation omitted). Id. At the time the pursuit began,
and prior to seeing the defendant with the firearm, Almeida had
entered the defendant's name into the Criminal Justice
Information System database and had learned that the defendant
did not have a Massachusetts license to carry firearms. Thus,
at the time Almeida saw the defendant with a firearm and
commanded him to drop the gun, there was not only reasonable
suspicion to stop the defendant but also probable cause to
believe that he was committing a crime.1 The motion to suppress
was properly denied.
1 The defendant contends that the judge found that Almeida saw the defendant's firearm prior to running after him, and that this finding was clearly erroneous. As Almeida did not seize the defendant until he commanded the defendant to "drop the gun" and the seizure was constitutional, we need not analyze the defendant's contention.
4 Trial evidentiary rulings. The defendant argues that the
evidence that a person had been shot the day before "in the
South End" where the defendant lived was improperly admitted
prior bad act evidence. Additionally, the defendant contends
that the evidence posed a risk of unfair prejudice greater than
the evidence's probative value. Because the defendant preserved
these issues via objection at trial, "we review the proceedings
below for prejudicial error" and note that "[a]n error is not
prejudicial if it did not influence the jury, or had but very
slight effect" (citations and quotation omitted). Commonwealth
v. Rodriguez, 92 Mass. App. Ct. 774, 780 (2018).
No prejudicial effect is apparent here. Video evidence
admitted at trial clearly shows the defendant throw a glittery
object over the fence in the same area where the police
testified to finding a gun. Therefore, even if admission of the
prior shooting was error, we conclude that the defendant was not
prejudiced. See Commonwealth v. Imbert, 479 Mass. 575, 587
(2018) (finding no prejudice where issue was collateral to
defendant's guilt and "likely did not matter to the jury's
verdict").
Furthermore, evidence of the prior shooting was admissible
to provide the jury with background information to understand
the reason why the police were monitoring certain online
activity. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992).
5 "Police are entitled to explain the motivations for their
conduct in carrying out an investigation," Commonwealth v.
Tanner, 66 Mass. App. Ct. 432, 438 (2006), and it is within the
"sound discretion of the trial judge" to determine "relevance,
probative value, and prejudice," Commonwealth v. West, 487 Mass.
794, 805 (2021).
The evidence of the prior shooting was highly relevant for
the jury to understand why the police monitored a Snapchat
account and what led the police to place the defendant under
surveillance. Certainly, a request for a limiting instruction
by the Commonwealth or the defendant would have been the better
course. See Commonwealth v. Peno, 485 Mass. 378, 395-396 (2020)
(noting value of contemporaneous limiting instruction in
mitigating risk of prejudice); Commonwealth v. Bryant, 482 Mass.
731, 735 (2019) (effectiveness of limiting instructions should
be considered in balancing probative value versus unfair
prejudice); Commonwealth v. Almeida, 479 Mass. 562, 569 (2018)
(limiting instruction to jury both when prior bad act evidence
was introduced and in final charge minimized prejudicial effect
from admission). But even without a limiting instruction, we
conclude that the judge properly weighed the probative value of
the evidence against the prejudice to the defendant. While the
judge admitted the evidence of the prior shooting, the judge did
not permit the Commonwealth to introduce evidence that the
6 defendant was "an alleged associate" of the person who was shot
the day before. See West, 487 Mass. at 807. We discern no
error.
We further note that the defendant's characterization of
this evidence as prior bad act evidence is inapt. Prior bad act
evidence is necessarily tied in some manner to the defendant.
See, e.g., Commonwealth v. Lora, 494 Mass. 235, 246 (2024)
(analyzing as prior bad act evidence social media posts
"referenc[ing], albeit vaguely, past actions by the defendant
that suggest involvement in misconduct"). As the defendant
concedes, "there was no connection between the evidence of the
prior shooting and [the defendant]." And once admitted, the
Commonwealth limited its use of the evidence to the purpose of
explaining the police conduct. Cf. Commonwealth v. Bregoli, 431
Mass. 265, 278 (2000), citing Commonwealth v. Johnson, 412 Mass.
318, 321-324 (1992) ("prosecutor may not present to jury
evidence admitted for limited purpose as if it were substantive
evidence"). Furthermore, to the extent it is more probative
than prejudicial, prior bad act evidence is only inadmissible if
demonstrating a defendant's bad character or propensity to
commit the charged crime. See Commonwealth v. Crayton, 470
Mass. 228, 249 (2014); Mass. G. Evid. § 404(b)(1) (2025). Here,
we discern nothing in the record suggesting that the evidence of
the prior shooting was admitted for either purpose.
7 Lastly, we reject the defendant's contention that the video
evidence was not properly authenticated. A video recording can
be authenticated by "having an eyewitness testify that the video
is a fair and accurate representation of what he [or she] saw on
the day in question." Commonwealth v. Connolly, 91 Mass. App.
Ct. 580, 586 (2017). During direct examination, while Almeida
viewed the video evidence, he provided testimony identifying the
setting, the defendant, and the police officers portrayed in the
video recording, and confirmed that it was a "fair and accurate"
representation of what occurred at that location on the day in
question. The video evidence was properly authenticated.
Judgments affirmed.
By the Court (Neyman, D'Angelo & Allen, JJ.2),
Clerk
Entered: January 6, 2026.
2 The panelists are listed in order of seniority.