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

22-P-316

COMMONWEALTH

vs.

RUBEN PINA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions of armed assault 

with intent to murder, in violation of G. L. c. 265 § 18 (b); 

assault and battery by means of a dangerous weapon causing 

serious bodily injury, in violation of G. L. c. 265, § 15A (c)

(1); commission of a felony while in possession of a firearm, in 

violation of G. L. c. 265, § 18B; carrying a firearm without a 

license, in violation of G. L. c. 269, § 10 (a); and possession 

of ammunition without a firearm identification card, in 

violation of G. L. c. 269, § 10 (h) (1). The defendant also 

appeals from the denial of his motion for a new trial, which was

grounded in a claim of ineffective assistance of counsel. The 

appeals were consolidated. We affirm. 

Discussion. 1. Evidentiary claim. The defendant argues 

that a police officer's testimony was improper because the 
2

officer identified the defendant from photographs and video

footage. Because there was no objection, we review for a 

substantial risk of a miscarriage of justice. See Commonwealth

v. Randolph, 438 Mass. 290, 297 (2002) (where issue not 

preserved for appeal, court determines whether claimed error 

produced substantial risk of miscarriage of justice). 

The general rule is that identification by a lay witness is 

admissible only "when the witness possesses sufficiently 

relevant familiarity with the defendant that the jury cannot 

also possess." Commonwealth v. Wardsworth, 482 Mass. 454, 475 

(2019), quoting Commonwealth v. Vacher, 469 Mass. 425, 441 

(2014). The testimony at issue by the officer was:

"I compared the individual characteristics as well as 

clothing. I looked closely at the individuals, in 

particular the individual I believed to be Mr. Ruben Pena

[sic]. I looked at the clothing. I observed the moose on 

the clothing. I observed at close look that there was a 

slight scar above his eyebrow, near the bridge of his nose. 

There was also a small mole on the side of his face, and I 

found that -- I observed that that was consistent with Mr. 

Pena [sic]."

The Commonwealth argues that the officer's testimony was not a 

direct identification of the defendant, but merely explained why 

the defendant was the target of the investigation. In this 

case, the testimony was especially relevant because prior to the 

police officer's testimony, the defendant had attacked the 

nature and quality of the police investigation. See 

Commonwealth v. Avila, 454 Mass. 744, 755 (2009) (where 
3

defendant attacks police investigation, "the Commonwealth was 

entitled to elicit testimony about why the investigators chose 

the particular investigative path they did"). 

We need not decide whether the testimony was in fact an 

identification and admitted in error because the defendant has 

not shown that the testimony created a substantial risk of a 

miscarriage of justice. The jury had the ability themselves to 

view the video footage and the still photographs to determine 

whether the person in the video and pictures was in fact the 

defendant and whether he was present at the scene of the crime. 

See Commonwealth v. Grier, 490 Mass. 455, 477-478 (2022) ("Here, 

a single detective described what the still images at issue 

depicted, without at any point actually identifying the 

defendant as the individual seen in them . . . because the 

testimony likely had only a slight effect on the jury and thus 

did not substantially sway them, admitting the testimony was not 

prejudicial error"). 

2. Motion for new trial. In his motion for new trial, the 

defendant claimed his trial counsel was ineffective in two 

respects: (1) by failing to file a motion to suppress, and (2) 

by failing to question the officers about their illegal search 

of another individual's car. "[W]e review the denial of a 

motion for a new trial for 'a significant error of law or other 

abuse of discretion.'" Commonwealth v. Duart, 477 Mass. 630, 
4

634 (2017), cert. denied, 138 S. Ct. 1561 (2018), quoting 

Commonwealth v. Forte, 469 Mass. 469, 488 (2014). To establish 

a claim of ineffective assistance of counsel, a defendant must 

show both that trial counsel's performance fell "measurably 

below that which might be expected from an ordinary fallible 

lawyer" and that the defendant was consequently deprived "of an 

otherwise available, substantial ground of defence." 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

a. Failure to file a motion to suppress. The firearm at 

the root of the charges was recovered during a search of another 

individual's motor vehicle when the defendant was not present. 

See Pina v. Commonwealth, 491 Mass. 1020, 1020 (2023). In the 

case against the other individual, all the evidence of the 

search of that motor vehicle was suppressed on the basis that it 

had been illegally seized, and the Commonwealth nolle prossed 

the charges against the individual. In this case, trial counsel 

did not file a motion to suppress the evidence found in the 

other individual's motor vehicle, and evidence regarding the 

firearm was introduced against the defendant.

Where an ineffective assistance of counsel claim involves 

counsel's failure to file a motion to suppress, "the defendant 

must demonstrate that the evidence would have been suppressed if 

properly challenged." Commonwealth v. Cavitt, 460 Mass. 617, 

626 (2011). "[A] defendant contesting a search or seizure will 
5

need to show his or her own reasonable expectation of privacy in 

the place searched." Commonwealth v. DeJesus, 489 Mass. 292, 

296 (2022). The defendant had no expectation of privacy in the 

other individual's motor vehicle as he was not present at the 

time of the search and had no connection to the motor vehicle.1 

Since a motion to suppress would have been unsuccessful, trial 

counsel was not ineffective for failing to file one. 

b. Failure to cross-examine the officers. "We have 

applied a stringent standard of review to claims of ineffective 

assistance because of failure to impeach a witness." 

Commonwealth v Jenkins, 458 Mass. 791, 805 (2011). In general, 

the mere failure to impeach a witness does not constitute 

ineffective assistance of counsel. See Commonwealth v. Fisher, 

433 Mass. 340, 357 (2001). Unless counsel failed "to pursue 

some obviously powerful form of impeachment . . . it is 

speculative to conclude that a different approach . . . would 

likely have affected the jury's conclusion." Commonwealth v. 

Knight, 437 Mass. 487, 502 (2002), quoting Fisher, supra. 

1 "In one limited situation, however, a defendant may rely on 

another's reasonable expectation of privacy: where the 

defendant has been charged with possessing contraband at the 

time of the search and, also at the time of the search, the 

property was in the actual possession of a codefendant or in a 

place where the codefendant had a reasonable expectation of 

privacy, the defendant may assert the same reasonable 

expectation of privacy as the codefendant." DeJesus, 489 Mass. 

at 296-297. That limited situation is not applicable to this 

case.
6

Putting aside whether counsel could permissibly have questioned 

the officers about whether the search of the other individual's 

car was unlawful, the defendant has failed to demonstrate with 

reasoned argument, as opposed to conclusory assertions, how such 

a cross-examination would have undermined the evidence against 

the defendant or otherwise affected the jury verdict. We 

therefore discern no abuse of discretion or error of law in the 

motion judge's determination that the defendant failed to meet 

his burden of establishing that his trial counsel provided 

ineffective assistance or that he was prejudiced as a result.2 

Judgments affirmed.

Order denying motion for new 

trial affirmed.

By the Court (Massing, 

Hershfang & D'Angelo, JJ.3),

Clerk

Entered: March 16, 2023.

2 The Commonwealth and the defendant agree that the case should 

be remanded for reconstruction of a missing portion of the 

impounded transcript regarding the discharging of a juror. 

There is no suggestion or indication that the missing transcript 

pages have any relevance to the issues raised in this appeal. 

Where we are affirming in full the judgments and the order 

referenced in the defendant's notices of appeal, a remand would 

be inappropriate. However, the defendant is free to pursue, in 

the trial court, reconstruction of the transcript and any 

claims, not previously available, that such reconstruction might 

suggest. 

3 The panelists are listed in order of seniority.