Commonwealth v. Torres

81 N.E.3d 823 (Table)

COMMONWEALTH

v.Jessie TORRES.

15-P-1686

Appeals Court of Massachusetts.

Entered: March 7, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury-waived trial, the defendant was convicted of assault and battery on his grandmother.² He appeals, arguing that the Commonwealth failed to disprove that he acted in self-defense. We affirm.

At trial, the judge heard evidence from two Pepperell Police Department officers. On April 18, 2013, Officer Jeremiah Friend was directed to an address where he observed two women on the front steps; one woman, "an elderly senior citizen," was crying. Friend spoke with both of the women and he observed that the victim, the woman who was crying, had "a swollen face and red marks on her skin and her upper body ... just on her chest area." She was taken to the hospital by ambulance.³

Sergeant William Greathead, the midnight patrol supervisor also testified. He said that he was on duty when the defendant came into the station. After he was given Miranda rights, the defendant agreed to speak with him. The defendant said that he had gotten into an altercation with his grandmother regarding her care of his daughter. According to the defendant, his grandmother slapped him and then he pushed her. She began to throw things at him, including her cellular telephone, and he broke it. The defendant told police officers that he then got dressed and began to leave with his daughter, but his grandmother blocked the door. He pushed her out of the way and left with his daughter.

The defendant bears the burden of production when asserting an affirmative defense. See Commonwealth v. Cabral , 443 Mass. 171, 178 n.15 (2005). According to him, he pushed his grandmother away from the door when he left the house. Given that, regardless of what had occurred earlier, before he got dressed, and even taken in the light most favorable to the defendant, we fail to see the evidence as fairly having raised the issue of self-defense. That is, there was neither a subjective nor objective basis, as is required, upon which to conclude that the twenty year old defendant's personal safety was at risk from his grandmother at the time that he pushed her out of the way. See, e.g., Commonwealth v. Adams , 458 Mass. 766, 775 (2011) ; Commonwealth v. Mellone , 24 Mass. App. Ct. 275, 282 (1987) ; Commonwealth v. Alebord , 49 Mass. App. Ct. 915, 915-916 (2000). Nor does it appear that the defendant did anything to avoid pushing her, such as asking her to move or seeking a second means of egress. See ...