Recently in COMMONWEALTH vs. JOSEPH LEE 460 Mass. 64 (2011) the SJC ruled that the evidence of the defendant’s intent to commit a felony was not sufficient to sustain the defendant’s conviction on a theory of joint venture, breaking and entering in the nighttime with intent to commit a felony charge, in violation of G. L. c.266, § 16. The SJC stated that the inferences that the defendant intended to commit the felony of assault and battery by means of a dangerous weapon, or whether he knew that his alleged coventurer possessed a knife when they forced their way into the apartment, may have been plausible, but could not bear the weight of proof beyond a reasonable doubt.
The court stated “Based on events that transpired after the defendant and a companion pushed their way into an apartment where a dinner party was in progress, the defendant was charged with several offenses in the South Boston Division of the Boston Municipal Court Department. Following a jury-waived trial, the defendant was convicted on a joint venture theory of breaking and entering in the nighttime with intent to commit a felony, G. L. c. 266, § 16. He also was found guilty of assault and battery (on Lisa Bartolomucci) by means of a dangerous weapon, G. L. c. 265, § 15B (b); and two counts of assault and battery (on John Murphy and Tracy Connor), G. L. c. 265, § 13A (a). The defendant appealed. The assault and battery convictions were affirmed by the Appeals Court in an unpublished memorandum and order pursuant to its rule 1:28. Commonwealth v. Lee, 76 Mass. App. Ct. 1127 (2010). We granted the defendant’s application for further appellate review to consider the limited question whether there was sufficient evidence of the defendant’s intent to commit a felony. Concluding there was not, we reverse the judgment of conviction of breaking and entering with intent to commit a felony. We remand the case for entry of a judgment of conviction on the lesser included offense of breaking and entering with intent to commit a misdemeanor and for sentencing pursuant to that offense.
There is no question that evidence of the use of force to gain entry into the apartment supports the element of breaking and entering, and that evidence of the defendant’s pushing the door being held by Connor, or of his participation in the pile up that caused him to land on her, amply supports his conviction of the misdemeanor charge of assault and battery on Connor. We disagree with the Commonwealth that this is evidence also of the defendant’s intent at the time of the breaking and entering to use a dangerous weapon against the apartment’s occupants.
Absent here is any evidence that the defendant on entry used any dangerous weapon in committing the assault and battery. Nor is there any evidence that the defendant knew McDonough was armed with a knife until the two had moved to the street and McDonough showed the knife during the ensuing altercation with the party guests. The Commonwealth’s reliance on Commonwealth v. Perron, 11 Mass. App. Ct. 915 (1981), is misplaced. In contrast to the evidence in the Perron case, where the defendant’s intent to commit a felony could have been inferred from the actual commission of the felonious act, “as well as ‘from the circumstances attending the act, and from the conduct and declarations of the defendant,’ ” id. at 917, quoting Commonwealth v. Shedd, 140 Mass. 451 , 453 (1886), here, there is no evidence of a prior feud or violence involving the party goers
and the coventurers, or of any threats, declarations, or felonious acts inside the apartment. There also is no evidence that either the defendant or McDonough made any statements as they left the apartment to suggest that a prior plan or scheme to commit a felony had been thwarted.
The Commonwealth argues that McDonough’s use of a knife to threaten the guests once he had been ejected from the apartment, and the defendant’s use of his fists to assault John at that time, considered with events that preceded these acts, supports an inference that the defendant and McDonough were intent on retaliating against those at the party. The Commonwealth further argues that this evidence of motive, when coupled with the additional evidence of the defendant’s failure to withdraw his support of the venture when McDonough pulled out a knife and began assaulting the guests, suggests a reasonable inference that the defendant had either the intent to commit an assault by means of a dangerous weapon at the time he entered the apartment, or that he shared McDonough’s intent.
We disagree. Although McDonough’s assault on the party guests in the street could have supported the defendant’s conviction, as a joint venturer, of an assault and battery by means of a dangerous weapon, see Commonwealth v. Sexton, 425 Mass. 146 , 152 (1997), it does not supply evidence of the additional element: that the intent to engage in the assaults on the party guests (who, by then, were no longer inside the apartment) had been formulated at the time of the breaking and entering. Even if we assume that such an intent could be attributed to McDonough — based on evidence that McDonough had a knife that he, inferentially, brought with him to the apartment, and that he thereafter used it to threaten the dinner guests — the later attacks in the street do not support an inference that the defendant knew, at the time of the breaking and entering, that McDonough had a knife or shared with McDonough an intent to commit an assault and battery by means of a dangerous weapon on those in the apartment. See Commonwealth v. Claudio, 418 Mass. 103 , 111 (1994) (to convict defendant “as a joint venturer of breaking and entering in the night time with intent to commit an armed assault” Commonwealth must prove, beyond reasonable doubt, that defendant knew his coventurer was armed withknife or other dangerous weapon). Such knowledge may be inferred from circumstantial evidence, including the defendant’s actions, see id. at 118, statements, see Commonwealth v. Lewis, 346 Mass. 373 , 378 (1963), cert. denied, 376 U.S. 933 (1964) (threats or declarations uttered), or a prior relationship between coventurers or shared motive, see Commonwealth v. Netto, 438 Mass. 686 , 702-703 (2003). Here, however, such evidence was lacking, and thus a reasonable inference could not have been made that the defendant knew McDonough was armed with a knife or other weapon at the time they entered the apartment. See Commonwealth v. Ronchetti, 333 Mass. 78 , 82 (1955) (specific intent to commit felony must exist at time of entry).
We disagree with the Commonwealth that evidence that the two men “worked in concert” to gain entry to the apartment and, once inside, wrestled briefly with guests, supports a reasonable inference that the defendant must have known that McDonough was carrying a knife. Commonwealth v. Housen, 458 Mass. 702 (2011), relied on by the Commonwealth at oral argument, is clearly distinguishable on its facts. See id. at 707-709. Missing from the present case is any evidence that, at the time of their entry into the apartment, any crime necessitating the use of a dangerous weapon was threatened, anticipated, or planned by the coventurers. Nor did the evidence that the defendant and McDonough fled when they heard police sirens provide a basis for the inference that the defendant knew his coventurer was armed at the time of the breaking an entering. Cf. Commonwealth v. LeClair, 68 Mass. App. Ct. 482 , 488-489 (2007) (strong circumstantial evidence that defendant knew his coventurer had a gun coupled with evidence of their flight together provided reasonable inference of defendant’s involvement in joint venture).
Finally, we do not agree that evidence that the defendant hurled a champagne bottle at the dinner guests, striking one of them in the face, provides the necessary inferential link that the defendant planned at the time he broke into the apartment, to find a champagne bottle or other item to use as a dangerous weapon against occupants of the apartment. See Commonwealth v. Poff, 56 Mass. App. Ct. 201 , 203-204 (2002) (requirement not met if intent formed after breaking and entering). The assault was too attenuated from the breaking and entering, and noother evidence served to connect it to that event. Cf. Commonwealth v. Lauzier, 53 Mass. App. Ct. 626 , 627-628 (2002) (defendant broke into parents’ home knowing guns were present; once inside defendant’s statements demonstrated his intent to use guns and thereafter he fired guns).
Conclusion. The inferences that the defendant intended to commit the felony of assault and battery by mean of a dangerous weapon or knew that McDonough possessed a knife when they forced their way into the apartment “may be plausible, but cannot bear the weight of proof beyond a reasonable doubt.” Commonwealth v. Rodriguez, 456 Mass. 578 , 583 (2010). We therefore reverse the judgment and vacate the sentence on the defendant’s conviction of breaking and entering with intent to commit a felony and remand the case for entry of a judgment of conviction on the lesser included offense of breaking and entering with intent to commit a misdemeanor, G. L. c. 266, § 16A. The defendant is to be sentenced relative to that offense.
Attorney Ronald A. Sellon