Commonwealth v. Peter J. Chongarlides, Sr. ( 2023 )


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  • NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
    23.0, as appearing in 
    97 Mass. App. Ct. 1017
     (2020) (formerly known as rule 1:28,
    as amended by 
    73 Mass. App. Ct. 1001
     [2009]), are primarily directed to the parties
    and, therefore, may not fully address the facts of the case or the panel's
    decisional rationale. Moreover, such decisions are not circulated to the entire
    court and, therefore, represent only the views of the panel that decided the case.
    A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
    2008, may be cited for its persuasive value but, because of the limitations noted
    above, not as binding precedent. See Chace v. Curran, 
    71 Mass. App. Ct. 258
    , 260
    n.4 (2008).
    COMMONWEALTH OF MASSACHUSETTS
    APPEALS COURT
    21-P-1032
    COMMONWEALTH
    vs.
    PETER J. CHONGARLIDES, SR.
    MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
    The defendant appeals from an order of a judge of the
    District Court revoking his probation.           He asserts that the
    judge abused his discretion when he relied on hearsay statements
    to conclude that the defendant violated his probation by
    committing new offenses and erred by failing to make written
    findings that the hearsay was substantially reliable.               We
    affirm.
    Background.     On June 6, 2019, the defendant pleaded guilty
    in the District Court to vandalizing property in violation of
    G. L. c. 265, § 126A.       A judge sentenced him to two years in a
    house of correction, with nine months to serve and the balance
    suspended for a term of three years.           While he was on probation,
    the defendant was charged with new offenses stemming from three
    instances of abuse of his girlfriend (victim).             The defendant
    received proper notice of the violations and a final surrender
    hearing was scheduled.
    At the hearing, the judge heard testimony from a police
    officer who responded to a call, on July 13, 2020, and received
    a report by the victim that the defendant had assaulted her.
    The officer testified not only to the victim's statements, but
    to his own observations of her "distressed" and "nervous"
    demeanor, and the defendant's raised voice when speaking with
    the victim.   The judge also received several documentary
    exhibits, including police narratives and medical records
    associated with the reported abuse of the victim.   The first
    police report described an incident, on November 4, 2020, in
    which the victim reported that the defendant approached the
    victim with a knife, called her names, pushed her against a
    truck, scratched the truck with the knife, followed her when she
    attempted to walk away, knocked her down, and kicked her in the
    face, stomach, and side as she lay on the ground.   The second
    report detailed an assault about two weeks later, on November
    17, 2020, where the victim reported that the defendant had
    punched the victim in the face repeatedly until she fell to the
    ground then stomped on her chest and refused to let her leave
    the home.   The victim did not testify at the hearing.
    At the conclusion of the hearing, the judge made oral
    findings on the record as follows:
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    "So, I've looked at the police reports. I've heard the
    testimony of the officer. I -- The police reports from the
    incidences (sic) of November 4th and November 17. They are
    hearsay. I find them to be based on personal knowledge and
    direct observation. They involve observations reported
    close in time. They're corroborated. They're provided
    under circumstances that would support the veracity of the
    source. They're factually detailed, internally consistent,
    and I note that, at least for the November 17 incident,
    [the victim] states that she was punched in the face and
    Mr. Chongarlides . . . stomped on her chest. She grabbed
    her left side when the police was (sic) talking to her,
    etcetera.
    "When I look at the medical reports, [the victim], after
    having been assaulted last night by a known assailant, her
    diagnosis and injures are multiple facial fractures,
    multiple rib fractures. I find that to be corroborating
    evidence. I heard from the officer as to the other
    incident.
    "Based upon the totality of the evidence before me, I find
    Mr. Chongarlides in violation of probation."
    The judge did not make written findings.
    Discussion.   1.   Hearsay.   The defendant argues that the
    judge violated his due process rights by improperly relying on
    unreliable hearsay statements of the victim offered through the
    testimony of one police officer, incident reports of two other
    officers, and medical records.1    He contends that without these
    1 Citing Commonwealth v. Durling, 
    407 Mass. 108
    , 112, 117-118
    (1990), the defendant also argues that the Commonwealth failed
    to set forth "good cause" for the absence at the probation
    violation hearing of the victim and the officers who authored
    the police reports that were taken as evidence. There was also
    considerable discussion at the hearing between the judge and the
    parties regarding the availability of the witnesses and efforts
    by the Commonwealth to secure their presence. We take this
    opportunity to reemphasize that "if reliable hearsay is
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    hearsay statements there was an inadequate basis for the judge
    to find that he violated his probation.
    "In probation violation proceedings, the Commonwealth bears
    the burden of proving by a preponderance of the evidence that
    the probationer violated the terms and conditions of [his]
    probation."   Commonwealth v. Bruno-O'Leary, 
    94 Mass. App. Ct. 44
    , 47 (2018).   At a probation violation hearing, a judge may
    rely on hearsay evidence that has "substantial indicia of
    reliability."    Commonwealth v. Ogarro, 
    95 Mass. App. Ct. 662
    ,
    668 (2019).   In assessing whether hearsay is substantially
    reliable, the judge may consider:
    "(1) whether the evidence is based on personal knowledge or
    direct observation; (2) whether the evidence, if based on
    direct observation, was recorded close in time to the
    events in question; (3) the level of factual detail; (4)
    whether the statements are internally consistent; (5)
    whether the evidence is corroborated by information from
    other sources; (6) whether the declarant was disinterested
    when the statements were made; and (7) whether the
    statements were made under circumstances that support their
    veracity." 
    Id.,
     quoting Commonwealth v. Hartfield, 
    474 Mass. 474
    , 484 (2016).
    See Commonwealth v. Costa, 
    490 Mass. 118
    , 124-125 (2022).
    "There is no requirement that hearsay satisfy all the above
    criteria to be trustworthy and reliable."    Commonwealth v.
    Patton, 
    458 Mass. 119
    , 133 (2010).    We review the judge's
    assessment of the reliability of that evidence for an abuse of
    presented, the good cause requirement is satisfied."
    Commonwealth v. Negron, 
    441 Mass. 685
    , 691 (2004).
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    discretion.   See Commonwealth v. Jarrett, 
    491 Mass. 437
    , 445
    (2023), citing L.L. v. Commonwealth, 
    470 Mass. 169
    , 185 n.27
    (2014).
    Here, the judge did not abuse his discretion by concluding
    the hearsay evidence was substantially reliable.     Both police
    reports contained detailed accounts by the victim of the events
    she described.   The November 4th report was taken within one
    hour of the assault.   The reporting officer observed damage to a
    truck consistent with the victim's account that the defendant
    had scratched it with his knife and injuries to the victim's
    face that corroborated her statement that the defendant had
    kicked her.   The November 17th incident was reported by the
    victim the following day when police were called to the hospital
    where she was being treated.    The officer saw that the victim's
    eye was swollen almost shut, her forehead was cut and bruised,
    and her lips were swollen.     Moreover, during their conversation
    when the victim coughed, the officer saw the victim "shriek[] in
    pain" and grab her side, consistent with her report of having
    been stomped by the defendant.    Finally, the victim's hearsay
    statements were further corroborated by medical records that the
    judge found showed she had facial and rib fractures.
    2.    Judge's findings.    The defendant also contends that the
    judge's failure to make written findings that the hearsay was
    substantially reliable was error.     We disagree.
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    "[A] judge who relies on hearsay evidence in finding a
    violation of probation . . . should set forth in writing or on
    the record why [the judge] found the hearsay evidence to be
    reliable" (quotation and citation omitted).       Commonwealth v.
    Grant G., 
    96 Mass. App. Ct. 721
    , 725 (2019).       Here, the judge
    set forth orally on the record his reasons for finding the
    hearsay substantially reliable.       He cited six of the seven
    factors discussed in Hartfield, 
    supra,
     in support of his
    conclusion.    Although written findings would have been
    preferable, they are not mandated.      Thus, there was no error.
    Order revoking probation
    affirmed.
    By the Court (Meade, Blake &
    Brennan, JJ.2),
    Clerk
    Entered:    June 16, 2023.
    2   The panelists are listed in order of seniority.
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