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, theref ore, 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

- 538

COMMONWEALTH

vs . BRIAN K. JOYCE , JR

. MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The defendant was tried and convicted in the Boston Municipal Court on a charge of distribution of a class B controlled substance, in violation of G. L. c. 94C, § 32A. While his direct appeal was pending, he moved unsuccessfully for a new trial on the bas is of ineffective assistance of counsel . In this consolidated appeal he raises claims based principal ly on the latter. Like the motion judge, we discern no basis for relief, and affirm the conviction and the order den ying the motion for a new trial. We address the defendant's several claims in turn. 1. The defendant first contends that trial counsel was constitutionally ineffective for attempting to create reasonable doubt by elicit ing evidence that police observed the defendant engage in three encounters preceding the encounter giving rise2 to the charged offense that appeared visually similar, if not identical, from the perspective of the observing officer. The defendant asserts th at this evidence tended to suggest that the defendant was a serial drug dealer , and cast the defendant as a bad actor . However, trial counsel's express strategy was to suggest that none of the encounters was a drug sale, and to point to the absence of cur rency from the preceding encounters to suggest that the Commonwealth's version of events was not credible. 1 Trial counsel's strategy was not manifestly unreasonable, and indeed sought to offer an alternative innocent explanation for an encounter the poli ce witness described as consistent with a hand

- to

- hand drug sale. That trial counsel's strategy was unsuccessful does not mean that it was unreasonable

1 When apprehended, th e defendant had one twenty dollar bill in his possession . Trial counsel argued that if each observed encounter had been a drug sale the defendant should have had multiple bills in his possession, and that in any event possession of twenty dollars in cash was insufficient to prove the defendant was selling drugs. The defendant's criticism on appeal of trial counsel's failure to elicit evidence of the street value of " crack " cocaine is unavailing. To begin with, the police offered no testimony that th ey witnessed the defendant making change during any of the observed encounters , leaving trial counsel free to suggest that the single bill in the defendant's possession was inconsistent with four encounters identical to the one police contended was a drug sale. In any event, the record on the new trial motion offers no evidence concerning what an attempt to elicit evidence of value would have produced, making any suggestion it would have been helpful rest on speculation.3 – - much less manifestly so. See Commonwealth v. Denson , 489 Mass. 138, 152 (2022). 2. Prior to trial the defendant moved in limine to exclude evidence of his statement, at the time of his arrest, that "this isn't my first time being arrested on drugs ." The statement was admissible as the statement of a party, see Mass. G

. Evid.

§ § 801(d)(2) , 404(b) (20 23 ) . Contrary to the defendant's contention on appeal, the trial judge did not abuse discretion in concluding that the evidence was admissible to show his knowledge of the charged conduct, and not inadmissible as propensity evidence. 2 In any e vent, the trial judge refused to allow certain more prejudicial portions of the statement in to evidence, the trial prosecutor placed little e mphasis on the admission in her closing, and the evidence of the defendant's guilt was substantial. 3. Finally, w e reject the defendant's contention that the evidence at trial was insufficient to support the defendant's conviction. 3 Even standing alone, the police officer's

2 Among other things, the evidence tended to support the Commonwealth's suggestion that the absence of other drugs in the defendant's possession at the time of his arrest could have been the result of the defendant's decision to swallow other packets held in his mouth for sale, based on his familiarity with the arrest process. 3 As framed on appeal, the argument suggests that "but for" the testimony o f the three prior encounters elicited by the defendant's trial counsel , the evidence did not support the conviction. If successful, the argument would support a new4 observation of the defendant spitting out a small bag from his mouth and handing it to a per son in exchange for what appeared to be currency, followed a short time later by the apprehension of the other person in possession of a small bag that tested positive for " crack " cocaine and the recovery from the defendant of a twenty dollar bill , when viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore , 378 Mass. 671, 676

- 677 (1979), was sufficient to establish that the defendant sold drugs to the other p erson. Judgment affirmed

. Order denying motion for new trial affirmed

. By the Court (Green, C.J., Shin & Hodgens, JJ. 4 ),

Clerk

Entered: August 21, 2023.

trial, and not a judgment of dismissal, since we assess the sufficiency of the evidence introduced at trial, including even evidence that was introduced in error . See Commonwealth v. Mauricio , 477 Mass. 588, 597 (2017)

. 4 The panelists are listed in order of seniority.