Com. v. Sylvester

• Court: Appeals Court of Massachusetts
• Citation: Com. v. Sylvester, 617 N.E.2d 661, 35 Mass.App.Ct. 906 (Mass. App. 1993)
• Decision Date: 03 December 1993
• Docket Number: No. 92-P-1658,92-P-1658
• Parties: COMMONWEALTH v. Relva SYLVESTER.

Page 661

617 N.E.2d 661

35 Mass.App.Ct. 906

COMMONWEALTH v. Relva SYLVESTER.

No. 92-P-1658.

Appeals Court of Massachusetts Suffolk.

Argued May 12, 1993.

Decided Aug. 17, 1993.

Review Denied Dec. 3, 1993.

Judith Farris Bowman, Cambridge, for defendant.

Paul B. Linn, Asst. Dist. Atty., for Com.

Before BROWN, KASS and LAURENCE, JJ.

RESCRIPT.

While Rondelle Offley stood making a call at an outdoor pay telephone, two men approached, one of whom, the defendant, and fired four or five shots at Offley. He was wounded in the knee. The attack was apparently a product of gang warfare. Indeed, the shooting had been preceded by the question to Offley, "Are you down with Strathcona?" Translated, that meant did Offley run with a gang that hung around Strathcona Street in Dorchester. Offley recognized the defendant Sylvester and knew him by name.

Such are facts the jury could have found on the basis of evidence received. The jury returned verdicts finding the defendant guilty of assault with intent to murder (G.L. c. 265, § 18), assault and battery with a dangerous weapon (G.L. c. 265, § 15A), and unlawful possession of a handgun (G.L. c. 269, § 10).

1. Sufficiency of the evidence to convict of assault with intent to murder. To avoid a required finding of not guilty, the government's evidence must, if taken in the light most favorable to the prosecution and permitting reasonable inferences to be drawn from the evidence, be of sufficient force to allow minds of ordinary intelligence and wisdom to find that the crime charged has been proved beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-679, 393 N.E.2d 370 (1979). Commonwealth v. Stewart, 411 Mass. 345, 349-350, 582 N.E.2d 514 (1991). The defendant argues that, as the defendant was wounded in the knee, the specific intent to kill cannot rationally be inferred. The shooting was at close range, after all. There was, however, a fusillade of shots, some fired after the defendant had already been hit in the knee and was sprawled on the ground. The jury were free to infer from the burst of shooting that whoever was firing intended mortal harm.

In his charge to the jury, the judge instructed the jury that the Commonwealth had the burden of proving

"that this defendant had in his mind an actual, subjective intent to kill. An intent merely to disable, an intent merely to scare off, an intent merely to inflict bodily injury is not sufficient. The intent to inflict bodily injury or even serious bodily harm is not sufficient.... You may consider all the surrounding facts and circumstances and weigh them in light of your common knowledge and experience in order to determine whether or not to draw the inference that the defendant committed the assault with the specific intent to kill."

The jury, thus, had the question of intent to kill squarely called to their attention. They could apply their common experience and decide that the less than mortal wound inflicted on the victim Offley was the consequence of poor marksmanship and that the purpose of firing off four or five shots was to kill the target. See Commonwealth v. Gabbidon, 398 Mass. 1, 5-6, 494 N.E.2d 1317 (1986); Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618, 563 N.E.2d 1379 (1990), S.C., 410 Mass. 1005, 572 N.E.2d 553 (1991).

2. Evidence satisfying definition of a handgun. Concerning the defendant's conviction of unlawful possession of a handgun, he protests that the government did not produce evidence that the weapon was a firearm as defined in G.L. c. 140, § 121, i.e., a pistol or revolver with a barrel less than sixteen inches. The victim testified...