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-552

COMMONWEALTH

vs.

RUBEN ALFONSO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in District Court the defendant was 

convicted of reckless operation of a motor vehicle (G. L. c. 90, 

§ 24 [2] [a]), leaving the scene of property damage (G. L.

c. 90, § 24 [2] [a]), and assault by means of a dangerous weapon 

(G. L. c. 265, § 15B [b]). The judge held the sentencing 

hearing approximately one month later, at which the defendant, 

at his request, represented himself pro se, and the judge 

allowed the defendant's trial counsel to withdraw. The 

defendant was ultimately sentenced to three years of 

incarceration.

On appeal, the defendant argues that aspects of the 

prosecutor's closing argument resulted in a substantial risk of 

a miscarriage of justice, primarily contending that the 

prosecutor improperly defined the concept of "beyond a 
2

reasonable doubt." He also argues that the judge erred in 

failing to ensure that the defendant knowingly and voluntarily 

waived his right to counsel at sentencing. We affirm. 

Background. We summarize the facts the jury could have 

found, reserving some details for later discussion. 

On October 25, 2020, the sixteen year old victim was 

returning from Haverhill, Massachusetts, to his home in 

Manchester, New Hampshire, when he encountered a road closure in 

Methuen. The victim parked on a side street to check his global 

positioning system (GPS) device and try to find an alternative

route home, and noticed a group gathered by a nearby vehicle, 

which the victim described as a maroon Honda CRV (maroon car). 

A man from the group approached the victim's vehicle, which 

prompted the victim to drive away. A few minutes later, while 

the victim was stopped at another location, the maroon car

approached the victim from the rear and then parked in front of 

his vehicle. The victim drove off, but the maroon car followed. 

The maroon car eventually hit the victim's driver's side door, 

and both vehicles came to a stop. The victim then saw the

driver of the maroon car get out of the vehicle, and observed 

that it was the same man who had approached his vehicle earlier, 

and that the man appeared to be reaching for something. The 

victim, feeling threatened, sped off. The maroon car followed

the victim into the parking lot of a nearby business, where the 
3

maroon car crashed into the back of the victim's vehicle before 

driving away.

The victim flagged down a nearby State police trooper, who 

contacted the Methuen Police Department. After arriving on the 

scene, a Methuen police officer walked the parking lot with the 

victim, and found a license plate near where the maroon car had 

collided with the victim's vehicle. The officer searched the 

registry of motor vehicles (RMV) database, which returned that 

the license plate was registered to a red sport utility vehicle 

(SUV) owned by the defendant, Ruben Alfonso.1 A few days later, 

another Methuen police officer conducted a photograph array with 

the victim. The victim picked out the defendant's photograph as 

the individual he had encountered, indicating at one point that 

the picture was the "perfect image" of the individual. However, 

during this same meeting the victim also stated that he was only 

fifty percent sure that the picture depicted the perpetrator.

At trial, the Commonwealth presented the above facts 

through testimony of the victim, the two Methuen police 

officers, and the State trooper, as well as video evidence from 

the police car and police body cameras. In closing, the 

1 We note that although the victim described the vehicle as a 

maroon Honda CRV, the RMV documentation indicates that the 

defendant's vehicle was a red Mazda CX9. Neither party has 

addressed this discrepancy, and it has no bearing on our 

analysis.
4

prosecutor argued that the evidence proved beyond a reasonable 

doubt that it was the defendant who had crashed into the 

victim's vehicle. Specifically, the prosecutor argued:

"You have [the victim]'s identification of the defendant 

through this photo array. And, I would suggest to you that 

[the victim] didn't really say that he was 100 percent 

certain. . . .

"But you don't just have his 50 percent. You have the 

other 50 percent that gets you to 100 percent. That gets 

you beyond a reasonable doubt in this case. And, that's 

the fact of this title from the RMV. You're going to see 

with this document that the registration of the car, the 

license plate right here is registered to [the defendant]. 

That's the 50, this is the other 50. We're at a 100 here."

The defendant did not object to this argument. The jury found 

the defendant guilty of reckless operation of a motor vehicle, 

leaving the scene of property damage, and assault with a 

dangerous weapon, and the matter was continued for sentencing.

Prior to the sentencing hearing the defendant wrote a 

letter to the trial court criticizing his counsel's "poor 

representation" at trial. Defense counsel became aware of the 

letter on or shortly before the date for sentencing, and, after 

conferring with his client, sought to withdraw his 

representation at the sentencing hearing. Counsel also advised 

the judge that the defendant had indicated that he was "willing 

to represent himself at sentencing." The judge then inquired of 

the defendant, who confirmed that he did not want trial counsel 

to represent him at the sentencing hearing and that he was 
5

"sure" he wanted to represent himself. The judge advised the 

defendant that he could consult a different attorney, and also 

offered the defendant additional time to prepare before 

beginning the hearing. The defendant declined both offers.2 The 

judge allowed counsel's motion to withdraw, and, after hearing 

from the Commonwealth and the defendant,3 advised that the 

defendant would be sentenced to two years of incarceration, 

followed by eighteen months of probation.

Before formally imposing that sentence, however, the judge 

addressed a separate larceny charge involving the defendant, as 

to which the defendant was represented by the same attorney. As 

to the separate larceny charge, the defendant expressed his 

desire to plead guilty, and to proceed pro se on that charge as 

well. Once again, the defendant declined the judge's offer to 

consult another attorney in connection with that decision. As 

to the larceny charge, the judge then conducted a colloquy with 

the defendant before accepting his plea, inquiring about the 

defendant's state of mind, his right to an attorney, and his 

2 The defendant also signed a waiver of counsel form in 

connection with his decision to proceed pro se at sentencing, 

but the record is unclear as to precisely when the defendant did 

so.

3 In addition to hearing from the defendant, the judge had before 

her a sentencing memorandum filed by defense counsel before he 

withdrew from the case.
6

desire to proceed without one. Among other things, that 

colloquy included the following exchange:

Q.: "Now, sir, you do understand that you have an absolute 

right to have an attorney, and I can appoint an attorney to 

represent you here today. You understand that?"

A.: "I completely understand, and I receive [sic]."

Q.: "And, you do not want to have an attorney?"

A.: "No, I don't want an attorney." 

Q.: "And, sir, do you understand that it would be helpful 

to have an attorney, because they're familiar obviously 

with the law and the legal rulings. But you essentially

would be expected to act like your own attorney, even

though you wouldn't have had the benefit of having gone to 

law school?"

A.: "Yes, I do understand that."

The judge also asked the defendant whether anyone was "forcing," 

"threatening" or "promising" him anything to forgo those rights, 

which the defendant answered in the negative.

After accepting the defendant's plea, and having the 

defendant sign a tender of plea form, the judge sentenced the 

defendant on the larceny charge, and also on the charges for 

reckless operation of a motor vehicle, leaving the scene of 

property damage, and assault with a dangerous weapon. As to the 

larceny charge, the judge sentenced the defendant to one year of 

incarceration. On the motor vehicle charges, there was 

additional discussion in which the defendant requested to "just 

do the time" in lieu of any period of probation. He said he 
7

would not "accept the restitution" and that he would "violate." 

He added, "I'll do time for that." The judge then amended the 

sentence she initially had indicated, and instead imposed a 

total of three years of incarceration with no probation. This 

appeal followed.

Discussion. 1. Closing argument. The defendant first 

challenges aspects of the prosecutor's closing argument as 

improper, primarily contending that the prosecutor incorrectly

redefined the reasonable doubt standard by reducing it to a 

mathematical equation. Because the defendant did not object, we 

review for a substantial risk of a miscarriage of justice. 

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

As an initial matter, to the extent the defendant suggests 

that prosecutors must refrain from any discussion of the 

reasonable doubt standard, we disagree. In Commonwealth v. 

Lester, 486 Mass. 239 (2020), for example, the Supreme Judicial 

Court found no error in a prosecutor's closing argument that 

discussed the beyond a reasonable doubt standard, in which the 

prosecutor noted that it was "not proof beyond all doubt," and 

that it was incapable of being "measure[d]." Id. at 250 & n.26. 

The court reasoned that the prosecutor's references to the 

standard were not incorrect, and thus not improper. See id. at 

250. Other cases similarly hold that mere references to the

reasonable doubt standard do not constitute error. See, e.g., 
8

Commonwealth v. Cook, 419 Mass. 192, 203 (1994) (not improper to 

argue to jury that they should "not be intimidated by the phrase 

'beyond a reasonable doubt'"); Commonwealth v. Atkins, 386 Mass. 

593, 602 (1982).

It is nonetheless true that prosecutors should not attempt 

to redefine reasonable doubt, nor should they reduce it to a 

mathematical equation. See, e.g., Commonwealth v. Ferreira, 460 

Mass. 781, 788 (2011) (error to mathematically quantify beyond a 

reasonable doubt standard); Commonwealth v. Snow, 30 Mass. App. 

Ct. 443, 447 (1991) ("prosecutor should not have attempted an 

explanation of reasonable doubt"). But the prosecutor here did 

neither. True, the prosecutor referenced percentages in her 

argument, but she did not commit the error of "equat[ing]

reasonable doubt to a percentage." Commonwealth v. Santana, 477 

Mass. 610, 628 (2017). The prosecutor did not say or suggest, 

for example, that the jury could convict the defendant on

ninety-eight percent assuredness. Contrast Ferreira, supra at 

787. Instead, the prosecutor described the two key pieces of 

evidence -- the victim's identification of the defendant and the 

license plate found in the parking lot -- and argued why that 

evidence taken together proved the defendant's guilt beyond a 

reasonable doubt. While not ideally phrased, the argument was 

not improper. See Commonwealth v. Quigley, 391 Mass. 461, 464 

(1984), cert. denied, 471 U.S. 1115 (1985) ("permissible" to 
9

argue that prosecutor has met "burden of proof by producing 

sufficient evidence of guilt beyond a reasonable doubt").

2. Sentencing hearing. The defendant next challenges the

judge's waiver of counsel colloquy, primarily contending that it 

was constitutionally inadequate because the judge did not 

sufficiently ensure that the defendant's waiver was knowing and 

intelligent. The defendant also argues that the judge did not 

comply with S.J.C. Rule 3:10, § 3, as appearing in 475 Mass. 

1301 (2016), because the judge did not (1) make written findings 

that the defendant was "competent to waive counsel and that [he] 

knowingly and voluntarily elected to proceed without counsel," 

or (2) "certify in writing that the [defendant] executed the 

waiver in the judge's presence."

"[W]e review claims of violations of the right to counsel 

de novo." Commonwealth v. Means, 454 Mass. 81, 88 (2009). 

Although the right to counsel at all critical stages of criminal 

proceedings is fundamental, "[c]riminal defendants may 

voluntarily . . . proceed without a lawyer." Id. at 89. 

Indeed, it is their constitutional right to do so. See 

Commonwealth v. Martin, 425 Mass. 718, 720-721 (1997) ("United 

States Constitution and the Massachusetts Constitution protect a 

defendant's right to proceed pro se"). A criminal defendant may 

therefore waive counsel by "affirmative request"; to be 

effective, however, the waiver "'must be voluntary' and must 
10

involve 'an informed and intentional relinquishment of a known 

right'" (citation omitted). Means, supra. The inquiry focuses 

on "the defendant's subjective understanding of his decision and 

its consequences." Commonwealth v. Barnes, 399 Mass. 385, 391 

(1987). "We have not prescribed the questions that a judge must 

pose to an accused who desires to represent himself nor is there 

any 'particular piece of information that is essential to an 

effective waiver of counsel.'" Id. at 390, quoting Maynard v.

Meachum, 545 F.2d 273, 279 (1st Cir. 1976). At bottom, "[w]e 

must be confident that the defendant was 'adequately aware of 

the seriousness of the charges, the magnitude of his 

undertaking, the availability of advisory counsel, and the 

disadvantages of self-representation'" (citations omitted). 

Martin, supra at 720.

Here, the judge's colloquy, in toto, established that the 

defendant knowingly and voluntarily waived counsel for his 

sentencing. Before the judge allowed the defendant to proceed 

pro se, the judge ensured that the defendant understood that he 

was on for sentencing, provided the defendant the opportunity to 

consult with another attorney, and offered him time to prepare 

before beginning the hearing. The defendant nonetheless 

represented that he was "sure" he wanted to represent himself,

and declined to consult with different counsel or to take 

additional time to prepare. Moreover, before the defendant was 
11

formally sentenced on the motor vehicle charges, the judge 

engaged in a waiver colloquy involving another criminal 

complaint wherein the judge (1) advised the defendant of his 

right to an attorney,4 (2) explained why an attorney would be 

helpful, and (3) inquired into the defendant's state of mind, 

including whether the defendant's decision was made free of

coercion. The defendant represented that he understood his 

rights and what he was giving up by proceeding pro se, and gave 

the judge no indication that his decision was anything other 

than knowing and voluntary. See Commonwealth v. Pamplona, 58 

Mass. App. Ct. 239, 242 (2003) (no error where "defendant 

repeatedly rebuffed the judge's offer for counsel"). We are 

accordingly satisfied that the defendant "subjective[ly] 

underst[ood]" both "his decision and its consequences." Barnes, 

399 Mass at 391.

Supporting this conclusion is that the defendant signed a 

waiver of counsel form, representing that he had been informed 

of his right to an attorney and that he had decided to waive 

that right. While that form was not strictly compliant with 

4 The defendant contends that he was not advised of rights other 

than his right to an attorney. We note that it is unclear what 

other rights the defendant contends he should have been informed 

of at the sentencing stage; the defendant had already had a jury 

trial, at which he was represented by counsel. Moreover, the 

defendant was afforded his right to appear and to be heard at 

his sentencing hearing, and he also had the benefit of a 

sentencing memorandum filed by counsel before counsel withdrew.
12

S.J.C. Rule 3:10, § 3, because the judge made no written 

findings and did not certify that the defendant executed the 

form in her presence, this "is not conclusive of a lack of 

waiver." Pamplona, 58 Mass. App. Ct. at 243. See Commonwealth

v. Haltiwanger, 99 Mass. App. Ct. 543, 557 (2021) ("we have held 

that failure to make a written finding of competency, or to 

certify the defendant's waiver, is not necessarily conclusive of 

a lack of valid waiver"). "The absence of a written counsel 

waiver does not alone require reversal, provided there is 

sufficient other evidence in the record to demonstrate that the 

waiver was voluntary and intelligent." Commonwealth v. 

Leonardi, 76 Mass. App. Ct. 271, 277 (2010). Here, as indicated

supra, the record reveals evidence sufficient to establish that 

the defendant's waiver was knowing and voluntary, especially 

considering the defendant's firm and repeated rejections of 

offers to consult with counsel. See Commonwealth v. Najjar, 96 

Mass. App. Ct. 569, 581 (2019) (waiver effective despite lack of 
13

signed form, in light of informative colloquy and defendant's 

"unequivocal responses").5 

Judgments affirmed.

By the Court (Henry, 

Desmond & Englander, JJ.6),

Clerk

Entered: July 13, 2023.

5 "Other points, relied on by the defendant[] but not discussed 

in this opinion, have not been overlooked. We find nothing in 

them that requires discussion." Commonwealth v. Domanski, 332 

Mass. 66, 78 (1954). 

6 The panelists are listed in order of seniority.