NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-382                                                   Appeals Court

                 COMMONWEALTH     vs.   TIMOTHY SHRUHAN.


                               No. 14-P-382.

           Suffolk.       October 1, 2015. - April 19, 2016.

              Present:     Cypher, Milkey, & Massing, JJ.


Assault and Battery by Means of a Dangerous Weapon. Evidence,
     Hearsay, Admitted without objection, Prior misconduct,
     Argument by prosecutor, Identification. Practice,
     Criminal, Hearsay, Failure to object, Argument by
     prosecutor, Instructions to jury. Identification.



     Indictment found and returned in the Superior Court
Department on April 15, 2011.

    The case was tried before Thomas A. Connors, J.


     Charles W. Rankin (Kerry A. Haberlin with him) for the
defendant.
     Paul B. Linn, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.        The defendant, Timothy Shruhan, appeals from

his conviction by a Superior Court jury on August 24, 2012, of

aggravated assault and battery by means of a dangerous weapon,

G. L. c. 265, § 15A(c).       Now, with new counsel, he seeks a new
                                                                   2


trial, alleging that cumulative errors in the admission of

inflammatory evidence1 and that the prosecutor's appeals to the

jury's emotions created a substantial risk of a miscarriage of

justice.   We affirm.

     Background.   On the afternoon of September 11, 2006,

Timothy Cahill stopped at The Quencher Tavern (Quencher), a

neighborhood bar near a community center where he worked in the

South Boston section of Boston, met his father briefly, and

ordered a cheeseburger to go.   While he was walking on I Street

back to work, a man he did not know, later identified as the

defendant, rushed out of the driver's seat of a nearby parked

automobile, yelling, "Hey, Joey."    The defendant, mistaking

Cahill for a South Boston man (Joe Pano), apparently aimed to

settle a score over a stolen item.   He stabbed Cahill in the

abdomen causing life threatening injuries.   Both "kind of

stumbled" and the victim, who was immediately aware that he had

been stabbed, put one hand on his wound and ran to the Quencher.

More than once, he exclaimed, "I'm not Joey."


     1
       Prior to trial, the defendant filed a motion in limine,
which was denied. Generally a motion in limine is insufficient
to preserve a party's appellate rights on an evidentiary issue
unless that party makes a proper objection at trial. See
Commonwealth v. Whelton, 428 Mass. 24, 25 (1998). "Without an
objection at trial, which gives the judge an opportunity to
reconsider the issue in context, any harm resulting from a
ruling in limine is purely speculative." Commonwealth v. Joyce,
464 Mass. 16, 18 (2012).
                                                                      3


         The defendant gave chase but soon quit and ran back to the

car, still occupied by his companion, Robert Glavin.    The

defendant drove off but not before a passerby, Jessica Bianco,

had memorized the car's license plate number.    Upon reaching her

home on East Sixth Street, Bianco telephoned the police and

passed on her observations.    She had noticed the Infiniti emblem

on the rear of the car and described it as silver in color and

bearing Massachusetts license plate number 65VB42.

     At the restaurant, several patrons and friends attempted to

stop the bleeding from the stab wound and called for emergency

assistance.2    Extraordinary measures implemented by an off-duty

Boston firefighter, Frederick Finn, and the quick assistance of

others in the restaurant, saved Cahill's life.     Cahill was soon

transported to the Boston Medical Center (BMC).     Dr. Peter

Burke, one of a team of physicians who performed the emergency

surgery, testified as to the extensive injuries and

complications that the victim had sustained.     Cahill required

several surgeries and some four months to recover.

     With only the information on the attacker's

misidentification of Cahill as Joey Pano, and no witnesses or

any physical evidence at the scene, the police were unable to


     2
       Cahill told Kim Connolly, one of the friends who came to
his aid, that he did not know who had stabbed him, but said that
the attacker thought that he was Joey Pano, and that he had
protested that he was not Pano.
                                                                    4


find the car or determine the identity of the attacker until

2009, after the car had been located and their investigation led

them to the defendant, Robert Glavin, and other acquaintances of

the defendant.3

     Jill McIntyre testified that on the afternoon of September

11, 2006, the defendant and Glavin left her house in the

midafternoon and returned after 3:30 P.M.   She observed that

they "were very sweaty and very shaky" upon their return.

McIntyre overheard the defendant say that they had "fucked up"

and "got the wrong person."

     The defendant telephoned Maryanne McColgan, the mother of

his two children, and asked her to drive to a nearby fast food

outlet where he and Glavin would be waiting.   At trial, McColgan

testified that when she picked them up, both men appeared to be

"a little nervous, kind of just not themselves."   McColgan drove

a short distance on West Broadway Avenue before both men got out

of her car near a Massachusetts Bay Transportation Authority

(MBTA) train station.




     3
       The car was found on a street in the Dorchester section of
Boston in 2008. At that time, it had a different license plate
than the one observed at the scene of the stabbing, but that
license plate was found in the trunk of the car. Police traced
the car through its vehicle identification number (VIN) to its
owner, and found that it was used by the owner's boyfriend,
Stephen Noltemy, who testified that he had sold it to the
defendant.
                                                                        5


     Glavin testified that he had been in the Infiniti with the

defendant on I Street that afternoon and had pointed out a

person he believed to be Joseph Pano.       According to Glavin, "We

pulled over.       He [the defendant] jumped out of the car.   I

turned around and looked out the back of the car and I seen

(sic) him stab the kid and then run back to the car and then we
               4
drove away."

     The defense was based on a theory of mistaken

identification and misdirection by the Commonwealth.       Through

cross-examination of the Commonwealth's witnesses, defense

counsel elicited testimony that Cahill had identified Stephen

Noltemy, see note 3, supra, as his assailant and had not

selected the defendant, even though his photograph was included

in the same photographic array.       The defendant also established

that he had not been identified by any percipient witness.         In

addition, on cross-examination of Glavin, McIntyre, and Noltemy,

defense counsel attempted to demonstrate that the three had a

history of drug use and that Glavin and Noltemy also had a

history of petty crime, rendering them all less than credible

witnesses.

     Discussion.       The defendant broadly asserts that this case

was not properly tried, claiming that the "prosecutor succeeded


     4
       Glavin informed the jury that he had pleaded guilty in
2011 as an aider or abettor.
                                                                   6


in getting before the jury patently inadmissible evidence --

some of it was hearsay, some of it was minimally probative but

highly prejudicial, and all of it served only to evoke sympathy

for Cahill and ire for Shruhan."    More specifically, the

defendant focuses on the admission of testimony of the victim's

parents, relatives, and friends, all of whom, the defendant

says, evoked ire against him and sympathy for the victim;

certain testimony from a Boston police officer who stated that,

in his presence, Cahill had voiced misgivings of an earlier

pretrial identification, which he made from a photo array; and

the prosecutor's closing argument, which, the defendant asserts,

was inflammatory and prejudicial.

    1.     The testimony of the victim's parents, relatives, and

friends.   The defendant argues that the "sheer number of

witnesses called to testify to Cahill's injuries is troubling."

The defendant asserts that the testimony was irrelevant,

emotionally-fraught, and inadmissible.    He claims that certain

accounts of Cahill's injuries were sensationalized.    The

defendant supports this argument with references to the

testimony of family members present at the Quencher, whose

testimony describe the efforts made to control Cahill's bleeding

and prepare for the arrival of medical assistance and his

transport to a hospital.
                                                                     7


    The primary difficulty with the defendant's argument,

however, is that at trial the defendant offered no resistance to

the testimony.   The defendant's strategy was made quite plain

when his counsel delivered the opening statement, outlining what

would be a recurring theme in the case.    Counsel told the jurors

that they would hear from "a whole lot of witnesses and . . .

hear a whole lot of evidence" that he predicted would have

"nothing to do with whether [the defendant] is guilty of

something."    Counsel also told the jurors that they may feel

"intense sympathy for [the victim] and his family,"    and he

advised them that emotion had nothing to do with their decision

in the case.   By describing the case in these terms, counsel

prepared the jurors for what would follow in the Commonwealth's

case, suggesting that the presentation of witnesses was an

effort by the Commonwealth, deliberate and purposeful, to

distract the jurors and make its case appear to them to be

stronger than it was in actuality.   Counsel suggested that

"eighty or ninety percent of the evidence [that] the

Commonwealth is going to present -- I mean they have to present

it, but it doesn't have a lot to do with the identity of the

person who stabbed Tim Cahill."   Counsel returned to this theme

again in his closing argument, imploring the jury to acquit and

asserting that the Commonwealth did not have the facts or law on

its side.
                                                                   8


    Having elected to pursue this approach at trial, the

defendant cannot change tactics on appeal based on the fact that

he did not achieve the desired result.   "Counsel may not try a

case on one theory of law, and then obtain appellate review on

another theory which was not advanced at trial. . . .    Appellate

review should not be the occasion to convert the 'consequences

of unsuccessful trial tactics and strategy into alleged errors

by the judge.'"   Commonwealth v. Lazarovich, 410 Mass. 466, 476

(1991), quoting from Commonwealth v. Johnson, 374 Mass. 453, 465

(1978).   See Commonwealth v. Adams, 434 Mass. 805, 813-814

(2001) (regardless of specific tactical reason for proceeding in

a certain manner and regardless of its net effect, the fact that

it was part of an apparent trial strategy weighs heavily in

determining the existence of unfair prejudice).

    In any event, there was no substantial risk of a

miscarriage of justice.   A fair reading of the testimony does

not support a conclusion that the testimony was unduly

prejudicial to the defendant.   None of the testimony did more

than describe the shock family members and friends experienced

and their awareness that Cahill's injuries were serious.    None

of the testimony is directed at the defendant who was unknown to

them at the time.   Much of the testimony supports the

evidentiary basis for the "serious bodily injury" element of the

charged crime pursuant to G. L. c. 265, § 15A.    There was no
                                                                   9


error in the admission of the testimony, but considering the

defense strategy, even if the testimony should not have been

admitted, it did not create a substantial risk of a miscarriage

of justice.

     2.   Testimony of police Officer Robert Flynn, Jr.     The

defendant argues that the testimony of police Officer Robert

Flynn, Jr., in which he stated that Cahill had recanted his

pretrial identification of Noltemy, created a substantial risk

of a miscarriage of justice.5   According to the defendant, this

"rank hearsay eviscerated" the defendant's exclusive defense.

Again, the defendant's argument on appeal is precluded by the

trial strategy adopted by defense counsel.   Although the

defendant objected at first to Officer Flynn's testimony,

defense counsel withdrew the objection.6   In closing argument,

defense counsel addressed Flynn's testimony about Cahill's

recantation of his identification of Noltemy by arguing that the

testimony was "baloney," and that Cahill honestly believed

Noltemy was the stabber, but that the Commonwealth had called

Flynn to testify only because it wanted to "make their case a


     5
       Sometime after Cahill had identified Noltemy, he was out
with friends, including Officer Flynn. Cahill told Flynn that
he had "messed up" and identified the wrong person.
     6
       "Hearsay, once admitted, may be weighed with the other
evidence, and given any evidentiary value which it may possess."
Commonwealth v. Keevan, 400 Mass. 557, 562 (1987), quoting from
Mahoney v. Harley Private Hosp., Inc., 279 Mass. 96, 100 (1932).
                                                                    10


little better than it is."    Thus, once again, defense counsel

did not object to the evidence but instead embraced it and

attempted to use it to demonstrate the Commonwealth was trying

to mislead the jury.     See Commonwealth v. Adams, 434 Mass. at

813-814.   There was no error in the admission of the hearsay in

these circumstances, but even if there was, it did not create a

substantial risk of a miscarriage of justice.

    3.     Alleged bad character evidence.   The defendant argues

that the prosecutor improperly impugned his character by

attempting to admit evidence that would unfairly prejudice the

defendant.   One example pointed to by the defendant, testimony

that Glavin had warned McIntyre to watch out for the defendant

because he had killed someone, was not before the jury because

the judge prohibited the prosecutor from eliciting that hearsay.

When, later, Glavin testified that he had told McIntyre to

"watch out for the defendant" the judge sustained the

defendant's objection.    Although the jury heard the testimony,

they had no reason to believe that it was a reference to

anything but the stabbing.    The judge also struck McIntyre's

reference to seeing the defendant in the lock-up.     The judge

found that this was a "very glancing reference" and that it did

not specify that it was the defendant rather than McIntyre who

was in the lockup.   The judge rejected the defendant's motion

for a mistrial and provided the jury with a curative instruction
                                                                      11


about testimony in which an objection is sustained or where such

testimony has been struck.    The judge gave the same instruction

in the final charge.     The jury is presumed to follow the

instructions given by the judge.     See Commonwealth v. Roby, 462

Mass. 398, 413 (2012).     The testimony challenged by the

defendant either was not heard by the jury, was stricken, or was

the subject of a curative instruction.      There was no error, and

in particular, no error that could have affected the verdict.

    4.     Prosecutor's closing argument.    The defendant raises

several alleged missteps by the prosecutor in closing argument.

Defense counsel did not object during the Commonwealth's

closing.   The defendant has a considerable burden to demonstrate

that an alleged error, or combination of errors, by the

prosecutor in closing argument, caused a substantial risk of a

miscarriage of justice.     See Commonwealth v. Amirault, 424 Mass.

618, 650-652 (1997).   "A mere possibility of a different outcome

will not satisfy this burden."     Id. at 652.   If that were the

governing standard then virtually, any forceful and enthusiastic

remark voiced by a prosecutor would meet that test.

    a.     The prosecutor began his argument by stating that

"[w]hat is most disturbing about this case is . . . that Timothy

Shruhan stabbed the wrong man."     The defendant asserts that this

statement impermissibly asked the jury to put itself into

Cahill's position, causing them to think, "[i]t could have been
                                                                      12


me."    Because the prosecutor went on to describe the case as "a

senseless, stupid stabbing," we perceive nothing in that

characterization of the case that suggests to the jury that they

should view the case from Cahill's position.

       b.   The defendant complains that the prosecutor improperly

referred to Cahill's injuries and the heroics of his relatives

and friends who came to his aid.    We have already noted that

this evidence was admitted without objection and determined that

it was not prejudicial to the defendant, particularly in the

context of the defense.     In any event, the judge gave a clear

instruction to the jury that they were to disregard sympathy and

emotion in arriving at a verdict.     We presume that the jury

followed the instruction.     See Commonwealth v. McGee, 469 Mass.

1, 12 (2014).

       c.   The defendant argues that the prosecutor referred

several times to September 11 as an improper appeal to the

jury's emotions, asserting that the prosecutor capitalized on a

coincidence of timing with the "[fifth] anniversary of the 9/11

terrorist attacks."     He also asserts that the Quencher is a

"firefighter hang-out."     This argument appears to be an effort

by the defendant to enhance his claim that the entire case was

tried improperly through the use of inflammatory evidence.       It

was inevitable that the date of September 11 would come up in

this trial, after all, it was the date of the crime.     In noting
                                                                  13


the date of the crime, the prosecutor referenced September 11 on

several occasions.   While such repetition was unnecessary and

perhaps dramatic, we expect that the jury in this case were able

to recognize rhetoric and hyperbole.   See Commonwealth v.

McLaughlin, 431 Mass. 506, 511-512 (2000).   Even if the

multiplicity of references to the date was error, it did not

create a substantial risk of a miscarriage of justice.

    d.   The defendant claims that the prosecutor improperly

asked the jury to "hold [Shruhan] responsible today," and "to

return verdicts of aggravated assault and battery by means of a

dangerous weapon."   We do not think that these comments may be

viewed as impermissible exhortations or, even if error,

constituted a substantial risk of a miscarriage of justice.

Compare Commonwealth v. Sanchez, 405 Mass. 369, 375-376 (1989).

    e.   The defendant claims that the prosecutor misrepresented

identification evidence by asserting that, in closing argument,

the prosecutor stated that Cahill and witnesses O'Keefe and

Bianco identified the defendant.   There is no merit in this

assertion.   The prosecutor did not state "unequivocally" or

imply that in the aftermath of the stabbing any of the three had

identified the defendant.

    Conclusion.   We have carefully considered all of the

alleged errors in the prosecutor's closing in the context of the

entire case as it unfolded over the span of five trial days,
                                                                  14


including the judge's charge.   In view of the strength of the

Commonwealth's case and the judge's repeated warnings to the

jury not to decide the case based on sympathy, we conclude that

any of the prosecutor's closing remarks, some of which were less

than helpful or unnecessary, did not materially influence the

jury's verdict.

                                    Judgment affirmed.
