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March 20, 2026 Get Citation Alerts Download PDF Add Note

Commonwealth v. Phillip T. Palmer.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0293

• Precedential Status: Non-Precedential

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

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

25-P-293

COMMONWEALTH

vs.

PHILLIP T. PALMER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions after a jury

trial of assault and battery by discharge of a firearm, carrying

a loaded firearm without a license, and carrying a firearm

without a license. With regard to the conviction of assault and

battery by discharge of a firearm, the defendant argues that the

evidence was insufficient to show that he was the shooter and

that a detective's testimony about what was depicted in video

footage was an improper lay opinion, the admission of which

created a substantial risk of a miscarriage of justice. We

disagree and thus affirm that conviction. We reverse the

convictions of carrying a loaded firearm without a license and

carrying a firearm without a license because, as the defendant
argues and the Commonwealth concedes, the evidence was

insufficient to show that the defendant lacked a license.

Background. We recite the facts in the light most

favorable to the Commonwealth. See Commonwealth v. Tavares, 484

Mass. 650, 651 (2020). On October 31, 2020, around 11:30 P.M.,

Worcester police were dispatched in response to a ShotSpotter

activation1 at 92 Gates Street. At the scene the officers found

ten shell casings on the street and sidewalk, bullet holes in

the building's exterior, and the victim inside, shot and

suffering from severe injuries. After reviewing surveillance

footage, officers focused on a silver sport utility vehicle

(SUV) seen in the neighborhood around the time of the shooting.

Katelyn Bancroft, who was then in an "on and off"

relationship with the defendant, testified that the defendant

told her on the evening of the shooting that they were going to

"his friend's house to pick up drugs." They were in a silver

SUV, which Bancroft said was owned by a woman who lived with the

defendant. The defendant drove the two of them to Worcester and

parked on Walpole Street, which is near Gates Street. While

Bancroft stayed in the car, the defendant got out, retrieved a

pouch from the backseat, and walked away. After fifteen or

1 ShotSpotter is a system that uses sensors to detect
possible gunshots. See Commonwealth v. Watson, 487 Mass. 156,
157 n.2 (2021).

2
twenty minutes, the defendant returned and then drove them back

to his house. This narrative was consistent with data showing

the location of the defendant's cellular telephone before and

after the shooting.2

The Commonwealth gathered surveillance footage and

introduced a compilation video at trial, which included footage

from a motion-activated street camera located close to the crime

scene. The footage shows a man wearing a sweatshirt with an

Adidas emblem walking on the sidewalk toward 92 Gates Street at

around 11:20 P.M. The footage then jumps ahead to show the man

standing outside 92 Gates Street. After another jump, the

footage moves to approximately 11:27 P.M., around the same time

as the ShotSpotter alert. The man in the Adidas sweatshirt is

seen walking away from 92 Gates Street, alternating between a

jog and a brisk walk. As the man turns the corner onto Walpole

Street, he places his hands at his waist and partially pulls up

his sweatshirt, as though he is putting something in his

waistband. He then runs down Walpole Street.

At trial Bancroft identified the man in the Adidas

sweatshirt as the defendant, and the silver SUV in the video

2 The defendant incorrectly asserts that there was no
evidence showing that the number associated with the telephone
was his. When the Commonwealth asked a detective whether "a
phone number of this defendant [became] relevant" during the
course of the investigation, the detective answered yes and
identified the number.

3
footage as the vehicle that the defendant was driving that

evening. Bancroft also testified that, two months before the

shooting, she was at the defendant's house and saw him with a

firearm, which the defendant told her was of nine-millimeter

caliber. The ten shell casings recovered at the crime scene

were all nine-millimeter casings.

Discussion. 1. Sufficiency of evidence of identity. We

review a challenge to the sufficiency of the evidence to

determine "whether, after viewing the evidence in the light most

favorable to the [Commonwealth], any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt" (citation omitted). Commonwealth v. Latimore,

378 Mass. 671, 677 (1979). The Commonwealth can meet its burden

of proof based on circumstantial evidence alone. See

Commonwealth v. Morrison, 97 Mass. App. Ct. 731, 735 (2020).

The evidence here -- in particular, Bancroft's testimony

combined with the video footage and cellular data -- was plainly

sufficient to show that the defendant was in the vicinity of 92

Gates Street at the time of the shooting. Indeed, the defendant

does not contest that the evidence allowed the jury to find that

he was the man in the Adidas sweatshirt seen in the video

footage. He claims, however, that the jury could not have found

beyond a reasonable doubt that he was the shooter. We disagree.

Although the Commonwealth's evidence was not overwhelming, the

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"reasonable and possible" inferences the jury could draw from

the evidence were sufficient to sustain the conviction.

Morrison, 97 Mass. App. Ct. at 735, quoting Commonwealth v.

Casale, 381 Mass. 167, 173 (1980).

As the defendant correctly observes, "mere presence at the

scene of a crime, without more, is not sufficient to support a

conviction." Commonwealth v. Brown, 490 Mass. 171, 179 (2022),

quoting Commonwealth v. Mazza, 399 Mass. 395, 399 (1987). But

here, there was more. The defendant's presence at 92 Gates

Street coincided with the time of the shooting: police received

the ShotSpotter alert at approximately 11:30 P.M., and the video

footage captures the defendant leaving 92 Gates Street around

that same time. The footage then shows the defendant moving

briskly and deliberately away from the crime scene, making a

motion consistent with placing an object in his waistband, and

then running once he got to Walpole Street. These movements

create a reasonable inference that the defendant fired the shots

and then quickly made his way back to where he had parked the

SUV on Walpole Street. Although the defendant asserted at oral

argument that he might have been running to avoid the shots, the

jury could have found that the deliberate nature of his

movements was more consistent with his being the assailant,

rather than a panicked bystander. See Commonwealth v. Mendez,

476 Mass. 512, 523-524 (2017) ("If the evidence lends itself to

5
several conflicting interpretations, it is the province of the

jury to resolve the discrepancy and determine where the truth

lies" [citation omitted]). In addition, Bancroft's testimony

established that the defendant had access to a nine-millimeter

firearm, the same caliber as the shell casings found at the

scene. This evidence in its totality was sufficient to prove

that the defendant was the shooter. See Commonwealth v. Jones,

477 Mass. 307, 316 (2017) (jury could infer defendant was

shooter where witnesses observed someone matching his

description running alone, away from victim's car, "clutching

something in his pocket consistent with a firearm").

We are unpersuaded by the defendant's argument that the

jury had to resort to speculation to convict him, given that the

video footage shows the presence of vehicular traffic and

possibly another pedestrian on Gates Street around the time of

the shooting. The Commonwealth had the burden of proving that

the defendant pulled the trigger, but did not need to disprove

the possibility that someone else could have done so. See

Morrison, 97 Mass. App. Ct. at 735. Based on the evidence cited

above, the Commonwealth met its burden. We are also unpersuaded

by the defendant's suggestion that the lack of evidence

connecting the defendant to the victim was fatal to the

Commonwealth's case, as the Commonwealth need not prove motive

6
to sustain a conviction. See Commonwealth v. Fortuna, 80 Mass.

App. Ct. 45, 51 n.8 (2011).

1. Admission of lay opinion. During the testimony of

Worcester Police Detective Robert Molinari, the prosecutor

played the video footage for the jury and questioned Molinari

about what he saw as it was playing. After a few questions, the

judge interrupted and sua sponte instructed the jury that it was

their "independent determination of what is or is not in the

video that matters." Later, at the point in the footage where

the defendant is seen placing his hands at his waist, the

prosecutor asked, "And what is depicted in this particular

video?" Molinari replied that, based on his training and

experience, "[i]t appear[ed] to [him] that it's someone putting

a handgun in their waistband." Although defense counsel did not

object, the judge interrupted the questioning again and

instructed the jury as follows:

"All right. So ladies and gentlemen of the jury, I just
want to remind you again, this officer is explaining a
compilation video as to how this investigation came to
focus on this defendant all right."

"He's making statements about things he's observed, and
opinions he has. You may accept those, reject them, accept
them in part, reject them in part. The obligation is on
each and every one of you to make your independent
determination about what this video shows, who it shows,
when things happened, or not."

The defendant now argues for the first time on appeal that

Detective Molinari's testimony was an improper lay opinion

7
because he was in no better position than the jury to determine

whether a firearm could be seen in the video footage. It is

unclear from the defendant's brief whether he is claiming that

the judge should have struck the testimony sua sponte, or if he

is raising his claim solely under the rubric of ineffective

assistance of counsel. Either way, the defendant cannot prevail

unless the admission of the testimony created a substantial risk

of a miscarriage of justice. See Commonwealth v. LaChance, 469

Mass. 854, 858 (2014).

We discern no such risk. Despite the lack of an objection,

the judge gave two forceful limiting instructions, emphasizing

that the jury had the obligation to determine for themselves

what the video footage showed. The jury is presumed to have

followed these instructions. See Commonwealth v. Shakespeare,

493 Mass. 67, 101 (2023) (no error in admission of officer's

testimony narrating what was happening in videos where "judge

gave a forceful instruction to the jury during the testimony,

which emphasized that [the] testimony was for the purpose of

helping the jury understand why police made certain

investigatory decisions and that it was the jury's job to decide

what they saw in the video"); Commonwealth v. Chin, 97 Mass.

App. Ct. 188, 205 (2020) (jury presumed to have followed

instruction that officer's observations of video "should not

override the jurors' own observations if they were at odds").

8
Furthermore, the challenged testimony was brief, and the

Commonwealth did not refer to it in closing. In these

circumstances we conclude that any error did not give rise to a

substantial risk of a miscarriage of justice.

1. Sufficiency of evidence of lack of firearm license. We

agree with the defendant, and the Commonwealth's concession,

that the evidence was insufficient to prove the element of lack

of licensure for the charges of carrying a loaded firearm

without a license and carrying a firearm without a license. See

Commonwealth v. Guardado, 491 Mass. 666, 690 (2023), S.C., 493

Mass. 1, cert. denied, 144 S. Ct. 2683 (2024). An employee of

the Department of Criminal Justice Information Services (DCJIS)

testified that he conducted a records search using the

defendant's name and a certain date of birth and obtained a

result of "[n]o records found," indicating that the defendant

did not have a license to carry a firearm. The problem is that

the Commonwealth introduced no evidence that the birth date the

DCJIS employee used to perform the search is the defendant's

actual birth date. In Commonwealth v. Smith, 496 Mass. 304, 317

(2025), the Supreme Judicial Court held that, "in the absence of

any substantive evidence of the defendant's birth date," the

testimony of a DCJIS employee that he conducted a search using

the defendant's name and what he presumed to be the defendant's

9
birth date was insufficient to prove lack of licensure. Smith

directly controls here.

Conclusion. The judgment of conviction of assault and

battery by discharge of a firearm is affirmed. The judgments of

conviction of carrying a loaded firearm without a license and

carrying a firearm without a license are reversed, the verdicts

are set aside, and the matter is remanded for entry of judgments

in favor of the defendant.

So ordered.

By the Court (Shin, Walsh &
Allen, JJ.3),

Clerk

Entered: March 20, 2026.

3 The panelists are listed in order of seniority.

10