463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

Ronald Mendes is in error when he contends, based
upon the improper conflation of harmless error analysis
with the question of whether the Commonwealth has
offered sufficient evidence to survive a motion for
required finding of not guilty, that reviewing courts
like this court should not even consider the evidence
as to the composition of the substance that was
admitted during the defendant's case in chief, and
should not consider even the defendant's own testimony.
(See RonM.Br. 39). Ronald Mendes contends, in
substance, that this is because "it is impossible to
say" (supposedly), on the bare appellate record,
"whether the defendants would have testified ... had the
certificates been properly admitted through the
analysts' testimony." (See RonM.Br. 39).
This is not the correct legal standard. First of
all, this approach would effectively jettison at least
two of the six Degraca factors: "the premise of the
defense" and "whether the erroneously admitt'ed evidence
was merely cumulative of properly admitted evidence."
Second, it would create an approach that would
establish a virtually insurmountable burden on the
Commonwealth. It would only be in a case like this
where such a burden can be carried, a case where
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