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-868

COMMONWEALTH

vs.

VIRIATO F. DEPINA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a District Court judge's denial 

of his motion for a new trial.1 We affirm.

The defendant claims that his trial counsel and first 

appellate counsel were ineffective.2 Generally, to prevail on an 

ineffective assistance of counsel claim a defendant must 

demonstrate that, but for his counsel's "serious incompetence, 

inefficiency, or inattention," Commonwealth v. Saferian, 366 

Mass. 89, 96 (1974), "the result of the proceeding would have 

been different," Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), 

1 In a margin notation, the judge denied the motion and wrote 

"(evidentiary hearing)"; however, the parties agree the hearing 

was not evidentiary. Nothing turns on this discrepancy.

2 Following a jury trial, the defendant was convicted of 

aggravated assault and battery, and assault and battery by means 

of a dangerous weapon. A panel of this court affirmed the 

convictions. See Commonwealth v. Depina, 87 Mass. App. Ct. 1107 

(2015).
2

quoting Strickland v. Washington, 466 U.S. 668, 694 (1984). 

When assessing whether appellate counsel was ineffective, "we 

focus on whether appellate counsel 'failed to raise a 

significant and obvious issue . . . which . . . may have 

resulted in a reversal of the conviction, or an order for a new 

trial.'" Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 282 

(2014), quoting Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 

232 (1993). The defendant identifies three areas wherein he 

claims his attorneys were ineffective.3 We address each in turn.

1. Use of the term victim. The defendant claims that his 

trial counsel was ineffective for failing to object to the use 

of the term "victim" to describe M.O., and that appellate 

counsel was ineffective for failing to raise this issue in his 

direct appeal. In pertinent part, the complaint alleged that 

the defendant assaulted and beat M.O, who sustained significant 

injuries.4 

During the trial, the prosecutor and Commonwealth witnesses 

referred to M.O. as the victim multiple times. As a general 

rule, "the better practice is for the prosecutor, defense 

3 The record does not contain an affidavit from the defendant's 

trial counsel or first appellate counsel. See Commonwealth v. 

Goodreau, 442 Mass. 341, 354 (2004) (judge may consider lack of 

affidavit from counsel in rejecting claim of ineffective 

assistance).

4 M.O. suffered a fractured skull, concussion, severe abrasions, 

and internal bleeding. 
3

counsel, the judge, and all of the witnesses to refrain from 

describing the person [injured] as the victim." Commonwealth v. 

Cadet, 473 Mass. 173, 181 (2015). Here, M.O. insisted that she 

-- not the defendant -- was the cause of her injuries, and that

she had not been assaulted. The jury were not required to 

believe this testimony. See Commonwealth v. Lao, 443 Mass. 770, 

779 (2005). "We assume 'a certain degree of jury 

sophistication' . . . and do not think it likely that the jury 

were swayed" by the use of the term victim. Commonwealth v. 

Cadet, 473 Mass. at 181, quoting Commonwealth v. Kozec, 399 

Mass. 514, 517 (1987). In the circumstances of this case, the 

use of the word victim did not create a substantial risk of a 

miscarriage of justice and therefore trial counsel was not 

ineffective for failing to object to it; appellate counsel was 

also not ineffective for failing to raise the issue in the 

direct appeal. See Breese v. Commonwealth, 415 Mass. 249, 252 

(1993) (if defendant received effective assistance of counsel at 

trial, no argument appellate counsel was ineffective).

2. Testimony regarding scuff marks. The defendant next 

argues that his trial attorney was ineffective for failing to 

object to a police detective's opinion as to the source of scuff 

marks on M.O.'s shoe.5 On direct examination, the detective

5 The shoe was entered in evidence without objection.
4

testified that the shoe had "a scuff down the side and some 

black markings on it." When asked whether he was "able to make 

any opinion on the scuff marks on that shoe," the detective said 

that "[i]t was like [the shoe] was dragged across the pavement." 

Even if we assume that an objection to the detective's

testimony would have been sustained by the judge, its admission 

did not create a substantial risk of a miscarriage of justice. 

Through cross-examination, trial counsel effectively raised 

doubt about the source and timing of the scuff marks, thereby 

diminishing any prejudice to the defendant. To the extent that 

this was a tactical decision, it was not manifestly unreasonable

when made, and therefore trial counsel was not ineffective. See

Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). And, 

because trial counsel was not ineffective, neither was appellate 

counsel. See Breese, 415 Mass. at 252.

3. Prosecutor's closing argument. Finally, the defendant 

contends that his trial counsel was ineffective for failing to 

object to the prosecutor's closing argument because the 

prosecutor misstated the reasonable doubt standard, improperly 

vouched for Commonwealth witnesses, and misstated the evidence. 

We are guided by the well-known proposition that "[r]emarks made 

during closing arguments are considered in the context of the 

whole argument, the evidence admitted at trial, and the judge's 

instructions to the jury." Commonwealth v. Philbrook, 475 Mass. 
5

20, 28 (2016), quoting Commonwealth v. Sylvia, 456 Mass. 182, 

193 (2010). We presume that the jury follows all of the judge's 

instructions. See Commonwealth v. Cheremond, 461 Mass. 397, 414 

(2012).

a. Reasonable doubt standard. The defendant takes issue 

with the prosecutor's statement that "even if there's some part

of you that wants to give [the defendant] the benefit of the 

doubt, just some small part, you can't. Because, his behavior 

was so wanton and reckless it caused serious injury to [M.O.]." 

This statement is problematic and was better left unsaid. 

However, shortly before the challenged statements, the 

prosecutor explicitly acknowledged that she bore the burden of 

proof beyond a reasonable doubt. Further, the judge gave clear 

and precise instructions to the jury on the purpose of closing 

arguments and the burden of proof. Taken as a whole, the 

challenged portions of the prosecutor's closing did not create a 

substantial risk of a miscarriage of justice. See Commonwealth

v. Jones, 471 Mass. 138, 148 (2015).

b. Vouching. The defendant contends that the prosecutor

improperly vouched for the Commonwealth's case and witnesses.6 

6 The challenged remarks included that there is "no other 

possible reason for why this happened"; "their story -- the 

story that they want you to believe -- does not make sense. 

It's improbable, and it's ridiculous"; "[t]he Commonwealth 

believes that we have proven beyond a reasonable doubt that [the 

defendant] did this intentionally"; and "why would these two 
6

Vouching occurs when "an attorney expresses a personal belief in 

the credibility of a witness or indicates that . . . she has 

knowledge independent of the evidence before the jury." 

Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting 

Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). None of the 

challenged remarks suggested that the prosecutor had personal 

knowledge of the witnesses' credibility or independent knowledge 

of evidence that was not before the jury. See Commonwealth v. 

Grier, 490 Mass. 455, 471 (2022). The remarks are best 

described as the prosecutor's attempt to marshal the evidence 

and suggest to the jury the conclusion they should draw from it, 

all of which is permissible. See Commonwealth v. Rutherford, 

476 Mass. 639, 643 (2017). 

c. Misstating the evidence. Finally the defendant claims 

that the prosecutor misstated the evidence or referenced 

evidence not in the record when she argued that the jury should 

consider the age difference between the defendant and M.O. when 

assessing whether the defendant had influenced M.O.'s testimony. 

The prosecutor was permitted to ask the jury to draw an 

inference that the defendant influenced M.O.'s testimony based 

on the age disparity between the two and the nature of their 

[witnesses], who have no idea who these individuals are, why 

would they testify to that yesterday? They testified to it,

because it's true." 
7

dating relationship. See Commonwealth v. Diaz, 478 Mass. 481, 

487 (2017), quoting Commonwealth v. Burgess, 450 Mass. 422, 437 

(2008) ("A prosecutor may attempt to 'fit all the pieces of 

evidence together' by suggesting what 'conclusions the jury 

should draw from the evidence'").

Trial counsel was not ineffective for failing to object to 

the prosecutor's closing argument; nor was appellate counsel 

ineffective for failing to raise it in the defendant's direct 

appeal. See Breese, 415 Mass. at 252.

Order denying motion for a 

new trial affirmed.

By the Court (Milkey, Blake & 

Sacks, JJ.7),

Clerk

Entered: September 28, 2023.

7 The panelists are listed in order of seniority.