Opinion
14-P-860
02-18-2015
COMMONWEALTH v. TIMOTHY T., a juvenile.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from a Juvenile Court judge's order allowing the juvenile's motion to dismiss, prior to arraignment, a delinquency complaint charging him with unarmed robbery as a joint venturer. We reverse.
The juvenile's adult coventurer is Victor Mekelver.
1. Background. We describe the relevant facts as set forth in the Massachusetts Bay Transportation Authority (MBTA) transit police affidavit filed in support of the complaint application. On January 24, 2014, at approximately 3:45 P.M., the victim was riding a Red Line train. While the train was stopped at Shawmut Station, an individual (later identified as Mekelver) approached the victim from behind and forcibly removed a cell phone from the victim's hand. The victim told police that Mekelver and "his accomplice" (later identified as the juvenile) fled from the train "to the left" on the platform and out of Shawmut Station. Surveillance video of Shawmut Station corroborated the victim's account. The surveillance video also showed Mekelver and the juvenile together "in the lobby area of Fields Corner MBTA station before boarding the outbound MBTA Red Line train [the victim] was robbed on." Several days later, MBTA transit police officers observed Mekelver and the juvenile at the Fields Corner station and identified them as the individuals from the surveillance video. During an interview at transit police headquarters, Mekelver identified himself as the individual in the surveillance video, admitted to the robbery, and told police that he sold the victim's phone for $100 to someone on the street and split the proceeds with the juvenile.
On April 1, 2014, a complaint issued charging the juvenile with unarmed robbery as a joint venturer. Before the arraignment, the juvenile filed a motion to dismiss the complaint for lack of probable cause. The judge granted the juvenile's motion after finding that the Commonwealth failed to show the juvenile and Mekelver planned the robbery together.
2. Discussion. We review de novo the motion judge's probable cause determination. Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013). Probable cause to issue a complaint exists where the complaint application sets forth "reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense." Commonwealth v. Roman, 414 Mass. 642, 643 (1993).
Where a juvenile is charged as a joint venturer, the complaint must indicate that the juvenile "knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). After reviewing the transit police affidavit, we conclude that it contains sufficient information to establish probable cause to issue the complaint charging the juvenile with unarmed robbery as a joint venturer with Mekelver. Specifically, the affidavit states that (1) the juvenile was with Mekelver immediately before the robbery; (2) he fled from the train and out of the station with Mekelver immediately after the robbery; and (3) Mekelver split the proceeds from the sale of the victim's cell phone with the juvenile. See Commonwealth v. Williams, 422 Mass. 111, 121 (1996) (reasonable to infer that coventurers who "entered the building together and fled together . . . were available and willing to help each other if necessary"); Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 711-712 (2011). We are satisfied that these facts, viewed collectively, provide probable cause to support the complaint. See Commonwealth v. Batista, 53 Mass. App. Ct. 642, 647 (2002). Accordingly, the judge erred in ordering its dismissal.
The juvenile's claim that these facts do not establish probable cause as to his knowledge of Mekelver's intent to commit a robbery is meritless. "A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances . . . ." Commonwealth v. Mattos, 49 Mass. App. Ct. 218, 223 (2000), quoting from Commonwealth v. Casale, 381 Mass. 167, 173 (1980). See Commonwealth v. Batista, 53 Mass. App. Ct. 642, 646 (2002). Here, the evidence was sufficient to establish probable cause as to the juvenile's knowledge.
The order allowing the motion to dismiss the complaint is reversed, and a new order shall enter denying the motion.
By the Court (Kafker, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 18, 2015.