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
25-P-293
COMMONWEALTH
vs.
PHILLIP T. PALMER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions after a jury
trial of assault and battery by discharge of a firearm, carrying
a loaded firearm without a license, and carrying a firearm
without a license. With regard to the conviction of assault and
battery by discharge of a firearm, the defendant argues that the
evidence was insufficient to show that he was the shooter and
that a detective's testimony about what was depicted in video
footage was an improper lay opinion, the admission of which
created a substantial risk of a miscarriage of justice. We
disagree and thus affirm that conviction. We reverse the
convictions of carrying a loaded firearm without a license and
carrying a firearm without a license because, as the defendant argues and the Commonwealth concedes, the evidence was
insufficient to show that the defendant lacked a license.
Background. We recite the facts in the light most
favorable to the Commonwealth. See Commonwealth v. Tavares, 484
Mass. 650, 651 (2020). On October 31, 2020, around 11:30 P.M.,
Worcester police were dispatched in response to a ShotSpotter
activation1 at 92 Gates Street. At the scene the officers found
ten shell casings on the street and sidewalk, bullet holes in
the building's exterior, and the victim inside, shot and
suffering from severe injuries. After reviewing surveillance
footage, officers focused on a silver sport utility vehicle
(SUV) seen in the neighborhood around the time of the shooting.
Katelyn Bancroft, who was then in an "on and off"
relationship with the defendant, testified that the defendant
told her on the evening of the shooting that they were going to
"his friend's house to pick up drugs." They were in a silver
SUV, which Bancroft said was owned by a woman who lived with the
defendant. The defendant drove the two of them to Worcester and
parked on Walpole Street, which is near Gates Street. While
Bancroft stayed in the car, the defendant got out, retrieved a
pouch from the backseat, and walked away. After fifteen or
1 ShotSpotter is a system that uses sensors to detect possible gunshots. See Commonwealth v. Watson, 487 Mass. 156, 157 n.2 (2021).
2 twenty minutes, the defendant returned and then drove them back
to his house. This narrative was consistent with data showing
the location of the defendant's cellular telephone before and
after the shooting.2
The Commonwealth gathered surveillance footage and
introduced a compilation video at trial, which included footage
from a motion-activated street camera located close to the crime
scene. The footage shows a man wearing a sweatshirt with an
Adidas emblem walking on the sidewalk toward 92 Gates Street at
around 11:20 P.M. The footage then jumps ahead to show the man
standing outside 92 Gates Street. After another jump, the
footage moves to approximately 11:27 P.M., around the same time
as the ShotSpotter alert. The man in the Adidas sweatshirt is
seen walking away from 92 Gates Street, alternating between a
jog and a brisk walk. As the man turns the corner onto Walpole
Street, he places his hands at his waist and partially pulls up
his sweatshirt, as though he is putting something in his
waistband. He then runs down Walpole Street.
At trial Bancroft identified the man in the Adidas
sweatshirt as the defendant, and the silver SUV in the video
2 The defendant incorrectly asserts that there was no evidence showing that the number associated with the telephone was his. When the Commonwealth asked a detective whether "a phone number of this defendant [became] relevant" during the course of the investigation, the detective answered yes and identified the number.
3 footage as the vehicle that the defendant was driving that
evening. Bancroft also testified that, two months before the
shooting, she was at the defendant's house and saw him with a
firearm, which the defendant told her was of nine-millimeter
caliber. The ten shell casings recovered at the crime scene
were all nine-millimeter casings.
Discussion. 1. Sufficiency of evidence of identity. We
review a challenge to the sufficiency of the evidence to
determine "whether, after viewing the evidence in the light most
favorable to the [Commonwealth], any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt" (citation omitted). Commonwealth v. Latimore,
378 Mass. 671, 677 (1979). The Commonwealth can meet its burden
of proof based on circumstantial evidence alone. See
Commonwealth v. Morrison, 97 Mass. App. Ct. 731, 735 (2020).
The evidence here -- in particular, Bancroft's testimony
combined with the video footage and cellular data -- was plainly
sufficient to show that the defendant was in the vicinity of 92
Gates Street at the time of the shooting. Indeed, the defendant
does not contest that the evidence allowed the jury to find that
he was the man in the Adidas sweatshirt seen in the video
footage. He claims, however, that the jury could not have found
beyond a reasonable doubt that he was the shooter. We disagree.
Although the Commonwealth's evidence was not overwhelming, the
4 "reasonable and possible" inferences the jury could draw from
the evidence were sufficient to sustain the conviction.
Morrison, 97 Mass. App. Ct. at 735, quoting Commonwealth v.
Casale, 381 Mass. 167, 173 (1980).
As the defendant correctly observes, "mere presence at the
scene of a crime, without more, is not sufficient to support a
conviction." Commonwealth v. Brown, 490 Mass. 171, 179 (2022),
quoting Commonwealth v. Mazza, 399 Mass. 395, 399 (1987). But
here, there was more. The defendant's presence at 92 Gates
Street coincided with the time of the shooting: police received
the ShotSpotter alert at approximately 11:30 P.M., and the video
footage captures the defendant leaving 92 Gates Street around
that same time. The footage then shows the defendant moving
briskly and deliberately away from the crime scene, making a
motion consistent with placing an object in his waistband, and
then running once he got to Walpole Street. These movements
create a reasonable inference that the defendant fired the shots
and then quickly made his way back to where he had parked the
SUV on Walpole Street. Although the defendant asserted at oral
argument that he might have been running to avoid the shots, the
jury could have found that the deliberate nature of his
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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
25-P-293
COMMONWEALTH
vs.
PHILLIP T. PALMER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions after a jury
trial of assault and battery by discharge of a firearm, carrying
a loaded firearm without a license, and carrying a firearm
without a license. With regard to the conviction of assault and
battery by discharge of a firearm, the defendant argues that the
evidence was insufficient to show that he was the shooter and
that a detective's testimony about what was depicted in video
footage was an improper lay opinion, the admission of which
created a substantial risk of a miscarriage of justice. We
disagree and thus affirm that conviction. We reverse the
convictions of carrying a loaded firearm without a license and
carrying a firearm without a license because, as the defendant argues and the Commonwealth concedes, the evidence was
insufficient to show that the defendant lacked a license.
Background. We recite the facts in the light most
favorable to the Commonwealth. See Commonwealth v. Tavares, 484
Mass. 650, 651 (2020). On October 31, 2020, around 11:30 P.M.,
Worcester police were dispatched in response to a ShotSpotter
activation1 at 92 Gates Street. At the scene the officers found
ten shell casings on the street and sidewalk, bullet holes in
the building's exterior, and the victim inside, shot and
suffering from severe injuries. After reviewing surveillance
footage, officers focused on a silver sport utility vehicle
(SUV) seen in the neighborhood around the time of the shooting.
Katelyn Bancroft, who was then in an "on and off"
relationship with the defendant, testified that the defendant
told her on the evening of the shooting that they were going to
"his friend's house to pick up drugs." They were in a silver
SUV, which Bancroft said was owned by a woman who lived with the
defendant. The defendant drove the two of them to Worcester and
parked on Walpole Street, which is near Gates Street. While
Bancroft stayed in the car, the defendant got out, retrieved a
pouch from the backseat, and walked away. After fifteen or
1 ShotSpotter is a system that uses sensors to detect possible gunshots. See Commonwealth v. Watson, 487 Mass. 156, 157 n.2 (2021).
2 twenty minutes, the defendant returned and then drove them back
to his house. This narrative was consistent with data showing
the location of the defendant's cellular telephone before and
after the shooting.2
The Commonwealth gathered surveillance footage and
introduced a compilation video at trial, which included footage
from a motion-activated street camera located close to the crime
scene. The footage shows a man wearing a sweatshirt with an
Adidas emblem walking on the sidewalk toward 92 Gates Street at
around 11:20 P.M. The footage then jumps ahead to show the man
standing outside 92 Gates Street. After another jump, the
footage moves to approximately 11:27 P.M., around the same time
as the ShotSpotter alert. The man in the Adidas sweatshirt is
seen walking away from 92 Gates Street, alternating between a
jog and a brisk walk. As the man turns the corner onto Walpole
Street, he places his hands at his waist and partially pulls up
his sweatshirt, as though he is putting something in his
waistband. He then runs down Walpole Street.
At trial Bancroft identified the man in the Adidas
sweatshirt as the defendant, and the silver SUV in the video
2 The defendant incorrectly asserts that there was no evidence showing that the number associated with the telephone was his. When the Commonwealth asked a detective whether "a phone number of this defendant [became] relevant" during the course of the investigation, the detective answered yes and identified the number.
3 footage as the vehicle that the defendant was driving that
evening. Bancroft also testified that, two months before the
shooting, she was at the defendant's house and saw him with a
firearm, which the defendant told her was of nine-millimeter
caliber. The ten shell casings recovered at the crime scene
were all nine-millimeter casings.
Discussion. 1. Sufficiency of evidence of identity. We
review a challenge to the sufficiency of the evidence to
determine "whether, after viewing the evidence in the light most
favorable to the [Commonwealth], any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt" (citation omitted). Commonwealth v. Latimore,
378 Mass. 671, 677 (1979). The Commonwealth can meet its burden
of proof based on circumstantial evidence alone. See
Commonwealth v. Morrison, 97 Mass. App. Ct. 731, 735 (2020).
The evidence here -- in particular, Bancroft's testimony
combined with the video footage and cellular data -- was plainly
sufficient to show that the defendant was in the vicinity of 92
Gates Street at the time of the shooting. Indeed, the defendant
does not contest that the evidence allowed the jury to find that
he was the man in the Adidas sweatshirt seen in the video
footage. He claims, however, that the jury could not have found
beyond a reasonable doubt that he was the shooter. We disagree.
Although the Commonwealth's evidence was not overwhelming, the
4 "reasonable and possible" inferences the jury could draw from
the evidence were sufficient to sustain the conviction.
Morrison, 97 Mass. App. Ct. at 735, quoting Commonwealth v.
Casale, 381 Mass. 167, 173 (1980).
As the defendant correctly observes, "mere presence at the
scene of a crime, without more, is not sufficient to support a
conviction." Commonwealth v. Brown, 490 Mass. 171, 179 (2022),
quoting Commonwealth v. Mazza, 399 Mass. 395, 399 (1987). But
here, there was more. The defendant's presence at 92 Gates
Street coincided with the time of the shooting: police received
the ShotSpotter alert at approximately 11:30 P.M., and the video
footage captures the defendant leaving 92 Gates Street around
that same time. The footage then shows the defendant moving
briskly and deliberately away from the crime scene, making a
motion consistent with placing an object in his waistband, and
then running once he got to Walpole Street. These movements
create a reasonable inference that the defendant fired the shots
and then quickly made his way back to where he had parked the
SUV on Walpole Street. Although the defendant asserted at oral
argument that he might have been running to avoid the shots, the
jury could have found that the deliberate nature of his
movements was more consistent with his being the assailant,
rather than a panicked bystander. See Commonwealth v. Mendez,
476 Mass. 512, 523-524 (2017) ("If the evidence lends itself to
5 several conflicting interpretations, it is the province of the
jury to resolve the discrepancy and determine where the truth
lies" [citation omitted]). In addition, Bancroft's testimony
established that the defendant had access to a nine-millimeter
firearm, the same caliber as the shell casings found at the
scene. This evidence in its totality was sufficient to prove
that the defendant was the shooter. See Commonwealth v. Jones,
477 Mass. 307, 316 (2017) (jury could infer defendant was
shooter where witnesses observed someone matching his
description running alone, away from victim's car, "clutching
something in his pocket consistent with a firearm").
We are unpersuaded by the defendant's argument that the
jury had to resort to speculation to convict him, given that the
video footage shows the presence of vehicular traffic and
possibly another pedestrian on Gates Street around the time of
the shooting. The Commonwealth had the burden of proving that
the defendant pulled the trigger, but did not need to disprove
the possibility that someone else could have done so. See
Morrison, 97 Mass. App. Ct. at 735. Based on the evidence cited
above, the Commonwealth met its burden. We are also unpersuaded
by the defendant's suggestion that the lack of evidence
connecting the defendant to the victim was fatal to the
Commonwealth's case, as the Commonwealth need not prove motive
6 to sustain a conviction. See Commonwealth v. Fortuna, 80 Mass.
App. Ct. 45, 51 n.8 (2011).
2. Admission of lay opinion. During the testimony of
Worcester Police Detective Robert Molinari, the prosecutor
played the video footage for the jury and questioned Molinari
about what he saw as it was playing. After a few questions, the
judge interrupted and sua sponte instructed the jury that it was
their "independent determination of what is or is not in the
video that matters." Later, at the point in the footage where
the defendant is seen placing his hands at his waist, the
prosecutor asked, "And what is depicted in this particular
video?" Molinari replied that, based on his training and
experience, "[i]t appear[ed] to [him] that it's someone putting
a handgun in their waistband." Although defense counsel did not
object, the judge interrupted the questioning again and
instructed the jury as follows:
"All right. So ladies and gentlemen of the jury, I just want to remind you again, this officer is explaining a compilation video as to how this investigation came to focus on this defendant all right."
"He's making statements about things he's observed, and opinions he has. You may accept those, reject them, accept them in part, reject them in part. The obligation is on each and every one of you to make your independent determination about what this video shows, who it shows, when things happened, or not."
The defendant now argues for the first time on appeal that
Detective Molinari's testimony was an improper lay opinion
7 because he was in no better position than the jury to determine
whether a firearm could be seen in the video footage. It is
unclear from the defendant's brief whether he is claiming that
the judge should have struck the testimony sua sponte, or if he
is raising his claim solely under the rubric of ineffective
assistance of counsel. Either way, the defendant cannot prevail
unless the admission of the testimony created a substantial risk
of a miscarriage of justice. See Commonwealth v. LaChance, 469
Mass. 854, 858 (2014).
We discern no such risk. Despite the lack of an objection,
the judge gave two forceful limiting instructions, emphasizing
that the jury had the obligation to determine for themselves
what the video footage showed. The jury is presumed to have
followed these instructions. See Commonwealth v. Shakespeare,
493 Mass. 67, 101 (2023) (no error in admission of officer's
testimony narrating what was happening in videos where "judge
gave a forceful instruction to the jury during the testimony,
which emphasized that [the] testimony was for the purpose of
helping the jury understand why police made certain
investigatory decisions and that it was the jury's job to decide
what they saw in the video"); Commonwealth v. Chin, 97 Mass.
App. Ct. 188, 205 (2020) (jury presumed to have followed
instruction that officer's observations of video "should not
override the jurors' own observations if they were at odds").
8 Furthermore, the challenged testimony was brief, and the
Commonwealth did not refer to it in closing. In these
circumstances we conclude that any error did not give rise to a
substantial risk of a miscarriage of justice.
3. Sufficiency of evidence of lack of firearm license. We
agree with the defendant, and the Commonwealth's concession,
that the evidence was insufficient to prove the element of lack
of licensure for the charges of carrying a loaded firearm
without a license and carrying a firearm without a license. See
Commonwealth v. Guardado, 491 Mass. 666, 690 (2023), S.C., 493
Mass. 1, cert. denied, 144 S. Ct. 2683 (2024). An employee of
the Department of Criminal Justice Information Services (DCJIS)
testified that he conducted a records search using the
defendant's name and a certain date of birth and obtained a
result of "[n]o records found," indicating that the defendant
did not have a license to carry a firearm. The problem is that
the Commonwealth introduced no evidence that the birth date the
DCJIS employee used to perform the search is the defendant's
actual birth date. In Commonwealth v. Smith, 496 Mass. 304, 317
(2025), the Supreme Judicial Court held that, "in the absence of
any substantive evidence of the defendant's birth date," the
testimony of a DCJIS employee that he conducted a search using
the defendant's name and what he presumed to be the defendant's
9 birth date was insufficient to prove lack of licensure. Smith
directly controls here.
Conclusion. The judgment of conviction of assault and
battery by discharge of a firearm is affirmed. The judgments of
conviction of carrying a loaded firearm without a license and
carrying a firearm without a license are reversed, the verdicts
are set aside, and the matter is remanded for entry of judgments
in favor of the defendant.
So ordered.
By the Court (Shin, Walsh & Allen, JJ.3),
Clerk
Entered: March 20, 2026.
3 The panelists are listed in order of seniority.