Commonwealth v. Almeida, 409 N.E.2d 776 (Mass. 1980). · Go Syfert
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Commonwealth v. Almeida, 409 N.E.2d 776 (Mass. 1980). Cases Citing This Book View Copy Cite
60 citation events (34 in the last 25 years) across 3 distinct courts.
Strongest positive: Commonwealth v. Xymir X., 94 N.E.3d 438 (Mass. App. Ct. 2017)
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
How cited ↗
Cited for
381 Mass. at 422 Proving knowledge of firearm in borrowed vehicle8 citing casesevidence that defendant was driving borrowed vehicle and retrieved his wallet from console containing gun was insufficient to permit inference of knowledge of gun where there was no evidence permitting inference he would have seen or felt gun when he put wallet in console1 citing court put it this way
  • Commonwealth v. Ormond O., a Juv., No. AC 16-P-840 (Mass. App. Ct. Sept. 18, 2017).published 2 cites
    (evidence that defendant was driving borrowed vehicle and retrieved his wallet from console containing gun was insufficient to permit inference of knowledge of gun where there was no evidence permitting inference he woul…)
  • Commonwealth v. Crapps, 997 N.E.2d 444 (Mass. App. Ct. 2013).published
    (no constructive possession of weapon in center console of vehicle which defendant had borrowed that evening)
  • Commonwealth v. Bailey, 563 N.E.2d 1378 (Mass. App. Ct. 1990).published
    For further contrasting situations, see Commonwealth v. Boone, 356 Mass. 85, 86-87, 87-88 (1969); Commonwealth v. Bennefield, 373 Mass. 452, 453-454 (1977); Commonwealth v. Almeida, 381 Mass. 420, 422-423 (1980).
  • Commonwealth v. Amendola, 532 N.E.2d 75 (Mass. App. Ct. 1988).published
    (insufficient evidence from which the jury could infer that defendant had seen or felt the gun inside console of borrowed automobile)
  • Commonwealth v. Collins, 417 N.E.2d 994 (Mass. App. Ct. 1981).published
    See Commonwealth v. Bennefield, 373 Mass. 452, 453 (1977); Commonwealth v. Almeida, 381 Mass. 420, 422 (1980); Commonwealth v. Gray, 5 Mass. App. Ct. 296, 298-299 (1977).
  • Commonwealth v. Sanchez, 664 N.E.2d 868 (Mass. App. Ct. 1996).published
    See Commonwealth v. Araujo, 38 Mass. App. Ct. 960, 962 (1995), analyzing Commonwealth v. Almeida, 381 Mass. 420, 422 (1980), and Commonwealth v. Brown, 401 Mass. 745, 748 (1988), and emphasizing the importance of ownership of the vehicle a…
  • Commonwealth v. Brown, 519 N.E.2d 1291 (Mass. 1988).published
    See Commonwealth v. Almeida, 381 Mass. 420, 422 (1980); Commonwealth v. Bennefield, 373 Mass. 452, 453 (1977).
  • Commonwealth v. Sampson, 422 N.E.2d 450 (Mass. 1981).published
    See Commonwealth v. Almeida, 381 Mass. 420, 422 (1980), and cases cited. 16 The following rationale as to the knowledge requirement in prosecutions for violations of the National Firearms Act was extracted by the First Circuit Court of App…
381 Mass. at 423 Inferring knowledge from plain view in vehicle searches5 citing casesfinding gun in plain view supports inference that defendant would likely have seen it1 citing court put it this way
  • Commonwealth v. Xymir X., 94 N.E.3d 438 (Mass. App. Ct. 2017).published 2 cites
    “The evidence was insufficient 'to warrant a reasonable inference of personal knowledge of the presence of the gun,' and the conviction cannot stand”
  • Commonwealth v. Ortega, 804 N.E.2d 345 (Mass. 2004).published
    (finding gun in plain view supports inference that defendant would likely have seen it)
  • Commonwealth v. Sabetti, 585 N.E.2d 1385 (Mass. 1992).published
    Garcia, supra at 687 , citing Commonwealth v. Almeida, 381 Mass. 420, 423 (1980).
  • Commonwealth v. Santana, No. AC 18-P-253 (Mass. App. Ct. May 8, 2019).published
    (evidence of constructive possession insufficient where it demonstrated only that defendant was lone occupant of vehicle containing contraband)
  • Commonwealth v. Garcia, 569 N.E.2d 385 (Mass. 1991).published
    See Commonwealth v. Almeida, 381 Mass. 420, 423 (1980).
381 Mass. at 421 Review of evidence regarding possession of firearm4 citing casespossession of firearm1 citing court put it this way
  • Commonwealth v. Snow, 920 N.E.2d 68 (Mass. App. Ct. 2010).published
    Commonwealth v. Almeida, 381 Mass. 420, 421-423 (1980); Commonwealth v. Brown, 401 Mass. at 747 .
  • Commonwealth v. Sadberry, 692 N.E.2d 103 (Mass. App. Ct. 1998).published
    Commonwealth v. Almeida, 381 Mass. 420, 421-423 (1980); Commonwealth v. Brown, 401 Mass. 745, 747 (1988).
  • Alicea v. Commonwealth, 573 N.E.2d 487 (Mass. 1991).published
    (possession of firearm)
  • Commonwealth v. Reilly, 498 N.E.2d 1366 (Mass. App. Ct. 1986).published
    See Commonwealth v. Moscatiello, 257 Mass. 260, 261 (1926); Commonwealth v. Almeida, 381 Mass. 420, 421 (1980).
409 N.E.2d at 778 cited at this page1 citing case
  • State v. Williams, 352 N.W.2d 576 (Neb. 1984).published 2 cites
    In the case of Commonwealth v. Almeida, 381 Mass. 420, 422-23 , 409 N.E.2d 776, 778 (1980), the Supreme Judicial Court of Massachusetts said: At the close of the Commonwealth's case, there was no evidence that the defendant saw the gun or…
381 Mass. at 420 The evidence was insufficient 'to warrant a reasonable inference of personal knowledge of the presence of the gun,' and the conviction cannot stand1 citing case1 citing court put it this way
  • Commonwealth v. Xymir X., 94 N.E.3d 438 (Mass. App. Ct. 2017).published 2 cites
    (The evidence was insufficient 'to warrant a reasonable inference of personal knowledge of the presence of the gun,' and the conviction cannot stand)
Other citing cases4 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Commonwealth vs. Pedro Almeida
Massachusetts Supreme Judicial Court.
Sep 2, 1980.
Published opinion
409 N.E.2d 776
1980 Mass. LEXIS 1291
Roger Getter for the defendant., Michael J. Traft, Assistant District Attorney, for the Commonwealth.
Hennessey, Quirico, Braucher, Wilkins, Abrams.
Cited by 36 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 81%
Citer courts: Massachusetts Appeals Court (1)
Quirico, J.

The defendant was convicted in 1976 in the Municipal Court of the City of Boston on two complaints: one charging him with the crime of carrying a firearm on his person in violation of G. L. c. 269, § 10, and the other charging him with the crime of possession of a firearm the serial number of which was defaced in violation of G. L. c. 269, § 11C. He appealed to the Superior Court. A judge in that court denied his motion to suppress, and a single justice of this court granted the defendant’s request for leave to appeal from that order. See G. L. c. 278, § 28E. We affirmed the order in Commonwealth v. Almeida, 373 Mass. 266 (1977).

[*421] Subsequently, a trial was held in the Superior Court. At the close of the Commonwealth’s case, the defendant moved for a directed verdict of not guilty, and he renewed the motion at the close of all the evidence. (See now Mass. R. Grim. P. 25, 378 Mass. 896 [1979]). The judge denied the motion on both occasions. A jury convicted the defendant on the carrying charge under § 10, and acquitted him on the § 11C charge.

The defendant appealed from that conviction to the Appeals Court. At oral argument, the Appeals Court, on its own motion, questioned the fact that the complaint charged possession “on his person” rather than “in a vehicle,” whereas the proof at trial related to the latter offense. The parties were granted leave to brief the issue and oral argument was rescheduled for three days later. The Appeals Court subsequently issued a rescript opinion reversing the defendant’s conviction on the ground that G. L. c. 269, § 10 (a), prohibits two separate offenses, see Commonwealth v. Rider, 8 Mass. App. Ct. 775, 777-778 (1979), and that a verdict of not guilty should have been directed because there was no evidence that the defendant carried the gun “on his person” and therefore the Commonwealth had failed “to prove the only offence charged.” Commonwealth v. Almeida, 9 Mass. App. Ct. 813 (1980). We granted the Commonwealth’s application for further appellate review.

We need not reach the questions whether G. L. c. 269, § 10 (a), comprises one or two offenses, and whether the defendant waived objection to the form of the complaint, as the Commonwealth argues. Our reading of the evidence leads us to conclude that there was not sufficient evidence of possession either “on his person” or “in a vehicle” to justify denial of the defendant’s motion for a directed verdict. We therefore affirm the result reached by the Appeals Court.

We summarize the evidence presented prior to the close of the Commonwealth’s case. About midnight on July 9, 1976, police Officers Michael Feeney and Arthur Ericson were driving on Back Street, which runs parallel to Beacon Street in Boston’s Back Bay area. They noticed the defend[*422] ant seated in a parked car with the engine running. As Officer Feeney approached the vehicle, he noticed that the defendant “shifted in his seat ... to move over towards the door itself.” As he approached, he saw that the defendant was looking at him. Officer Feeney drew his service revolver, and he believed the defendant saw him do so. He asked the defendant for his license and registration, and the defendant lifted up the top of a console on the front seat, withdrew his wallet, and gave Officer Feeney his license. Officer Feeney did not see the defendant look into the console.

The defendant did not produce a registration, so Officer Feeney ordered him out of the car. When the light inside the car went on, Officer Feeney noticed a gun holster under the front seat. He lifted the console, found the gun inside, and arrested the defendant.

Three nights later, one Richard Leek came to the police station to claim the car. He told Officer Feeney that he had loaned the car to the defendant on the evening of July 9. [1]

We agree with the Appeals Court that there was no evidence that the defendant carried the gun on his person, as the complaint alleged. See Commonwealth v. Seay, 376 Mass. 735, 737 (1978). Even if we were to treat the charge to be that the defendant carried a firearm “under his control in a vehicle” as prohibited by G. L. c. 269, § 10 (a), the Commonwealth must prove that he had knowledge that the gun was in the vehicle. Commonwealth v. Bennefield, 373 Mass. 452, 453-454 (1977). Commonwealth v. Albano, 373 Mass. 132, 133-135 (1977). Commonwealth v. Boone, 356 Mass. 85, 87 (1969). See Commonwealth v. Clarke, 350 Mass. 721, 722 (1966). At the close of the Commonwealth’s[*423] case, there was no evidence that the defendant saw the gun or knew of its presence in the automobile. There was no evidence of the size of the console, or whether the gun was easily visible, to permit the jury to infer that the defendant would likely have seen or felt the gun when he put his wallet into the console. [2] The jury would have had to speculate that the defendant knew the gun was in the covered console of a car he borrowed that evening, merely from his presence in that car. We believe the evidence was insufficient “to warrant a reasonable inference of personal knowledge of the presence of the gun.” Bennefield, supra at 453. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

In light of this holding, we need not consider evidence presented after the Commonwealth rested. Commonwealth v. Kelley, 370 Mass. 147, 149-150 & n.1 (1976). We also do not consider the other errors alleged in this appeal.

Judgment of the Superior Court reversed.

Verdict set aside.

Judgment for the defendant.

1

The defendant presented evidence that Leek had not responded to ab tempts to have him testify, that Leek had previously been convicted of possession of the same type of gun found in the car, and that Leek owned the car. The defendant’s wife testified that, on the evening her husband was arrested, she telephoned Leek, who came to her house at 4 a.m. and told her that the “illegal gun” was in the car. Leek said he had only one month left on probation and thus did not wish to “own up to the gun in court,” but he “got a lawyer” for the defendant “the first time he went to court.”

2

We upheld the denial of the motion to suppress in the Superior Court expressly on a “stop and frisk” rationale under Terry v. Ohio, 392 U.S. 1 (1968), and related cases, and not on a probable cause rationale. Commonwealth v. Almeida, 373 Mass. 266, 269-270 (1977). The question there was whether the police could reasonably believe “that their safety was threatened during the ‘stop’.” Id. at 272. We concluded that the police had the right to “stop” the defendant in the circumstances known to them, and to ask him to step from the car when he could not produce the registration. When they saw the gun holster and loaded clip, they had the right to search the console. Id. at 271-273.

The Terry test is not whether the officer was “absolutely certain that the individual is armed” but “whether a reasonably prudent [person] in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger.” Almeida, supra at 271, quoting from Commonwealth v. Silva, 366 Mass. 402, 406 (1974). The question presented here is whether there was enough evidence to survive a motion for a directed verdict of not guilty as to every element of the crime, including knowledge of the presence of the gun.