MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was tried and convicted in the Boston Municipal Court on a charge of distribution of a class B controlled substance, in violation of G. L. c. 94C, § 32A. While his direct appeal was pending, he moved unsuccessfully for a new trial on the basis of ineffective assistance of counsel. In this consolidated appeal he raises claims based principally on the latter. Like the motion judge, we discern no basis for relief, and affirm the conviction and the order denying the motion for a new trial. We address the defendants several claims in turn.
1. The defendant first contends that trial counsel was constitutionally ineffective for attempting to create reasonable doubt by eliciting evidence that police observed the defendant engage in three encounters preceding the encounter giving rise to the charged offense that appeared visually similar, if not identical, from the perspective of the observing officer. The defendant asserts that this evidence tended to suggest that the defendant was a serial drug dealer, and cast the defendant as a bad actor. However, trial counsels express strategy was to suggest that none of the encounters was a drug sale, and to point to the absence of currency from the preceding encounters to suggest that the Commonwealths version of events was not credible.
1
Trial counsels strategy was not manifestly unreasonable, and indeed sought to offer an alternative innocent explanation for an encounter the police witness described as consistent with a hand-to-hand drug sale. That trial counsels strategy was unsuccessful does not mean that it was unreasonable — much less manifestly so. See Commonwealth v. Denson, 489 Mass. 138, 152 (2022).
2. Prior to trial the defendant moved in limine to exclude evidence of his statement, at the time of his arrest, that “this isnt my first time being arrested on drugs.” The statement was admissible as the statement of a party, see Mass. G. Evid. §§ 801(d)(2), 404(b) (2023). Contrary to the defendants contention on appeal, the trial judge did not abuse discretion in concluding that the evidence was admissible to show his knowledge of the charged conduct, and not inadmissible as propensity evidence.
2
In any event, the trial judge refused to allow certain more prejudicial portions of the statement into evidence, the trial prosecutor placed little emphasis on the admission in her closing, and the evidence of the defendants guilt was substantial.
3. Finally, we reject the defendants contention that the evidence at trial was insufficient to support the defendants conviction.
3
Even standing alone, the police officers observation of the defendant spitting out a small bag from his mouth and handing it to a person in exchange for what appeared to be currency, followed a short time later by the apprehension of the other person in possession of a small bag that tested positive for “crack” cocaine and the recovery from the defendant of a twenty dollar bill, when viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), was sufficient to establish that the defendant sold drugs to the other person.
Judgment affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
1
. When apprehended, the defendant had one twenty dollar bill in his possession. Trial counsel argued that if each observed encounter had been a drug sale the defendant should have had multiple bills in his possession, and that in any event possession of twenty dollars in cash was insufficient to prove the defendant was selling drugs. The defendants criticism on appeal of trial counsels failure to elicit evidence of the street value of “crack” cocaine is unavailing. To begin with, the police offered no testimony that they witnessed the defendant making change during any of the observed encounters, leaving trial counsel free to suggest that the single bill in the defendants possession was inconsistent with four encounters identical to the one police contended was a drug sale. In any event, the record on the new trial motion offers no evidence concerning what an attempt to elicit evidence of value would have produced, making any suggestion it would have been helpful rest on speculation.
2
. Among other things, the evidence tended to support the Commonwealths suggestion that the absence of other drugs in the defendants possession at the time of his arrest could have been the result of the defendants decision to swallow other packets held in his mouth for sale, based on his familiarity with the arrest process.
3
. As framed on appeal, the argument suggests that “but for” the testimony of the three prior encounters elicited by the defendants trial counsel, the evidence did not support the conviction. If successful, the argument would support a new trial, and not a judgment of dismissal, since we assess the sufficiency of the evidence introduced at trial, including even evidence that was introduced in error. See Commonwealth v. Mauricio, 477 Mass. 588, 597 (2017).