Commonwealth v. Julio Perez-Sanchez. ( 2024 )

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
23-P-738
COMMONWEALTH
vs.
JULIO PEREZ-SANCHEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order revoking his probation.
The defendant asserts that the judge erred by considering
unreliable hearsay evidence. We affirm.
Background. While on probation for charges of breaking and
entering a building during the daytime with the intent to commit
a felony, and larceny over $250, the defendant was indicted for
strangulation or suffocation, assault and battery on a family or
household member, aggravated rape, strangulation of a pregnant
victim, assault and battery on a pregnant victim, assault and
battery with a dangerous weapon on a pregnant victim,
threatening to commit a crime, and rape. Based on these
charges, the probation department issued violation notices to
the defendant. 1
A probation violation hearing took place on March 24 and
April 18, 2023. The Commonwealth presented five police
witnesses, grand jury minutes, grand jury exhibits, police
reports, and body worn camera footage of the interview with the
victim. The evidence established that on October 16, 2022, the
victim reported to the police that the defendant had sexually
assaulted her two days earlier. 2 She told them that she had gone
to the defendant's home on October 14 to drop off some clothes.
While there, the defendant asked her to have sex and she
initially declined twice. The defendant threatened to punch her
in the stomach (she was pregnant), he then "choked" and bit her
so she "layed there" and "just took it" and had "unwanted sex."
The officers observed bruising on her neck region.
Additionally, one of the officers spoke to a neighbor, who saw
the victim go into the defendant's apartment on October 14 and
leave three hours later. The victim sent the neighbor text
1 The probation department also filed notices of violation
for entering a city that the defendant was prohibited from
entering due to an earlier court order, and other alleged
criminal conduct. The defendant concedes that he violated those
terms of probation, but argues that the judge would not have
revoked his probation and sentenced him on those violations.
2 Her allegations were recorded on body worn camera footage
and viewed by the hearing judge.
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messages stating that the defendant had sexually assaulted her.
The neighbor encouraged the victim to report the incident to the
police.
The victim's fourteen year old child told the police during
an interview that in the spring of 2022, the defendant had
choked the child. The victim confirmed to the police that she
saw the defendant place his hands on the child's neck. The
victim stated that she never reported this incident because she
wasn't sure how hard the defendant had squeezed. The child told
a friend about the defendant's choking the child and the friend
confirmed to the police that the child had said the defendant
choked the child.
Discussion. "The Commonwealth must prove a violation of
probation by a preponderance of the evidence." Commonwealth v.
Bukin, 467 Mass. 516, 520 (2014). At a probation 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 the hearsay evidence is
substantially reliable, a 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
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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
discretion. See Commonwealth v. Jarrett, 491 Mass. 437, 445
(2023).
The Commonwealth acknowledges that the evidence regarding
the allegations of rape, strangulation, and assault consisted
exclusively of hearsay evidence. The statements of the victim
and the child were made under circumstances that support their
veracity. The fact that both the victim and the child gave
statements to a police officer bolsters their reliability
because it is a crime to make a false report of a crime. See
Commonwealth v. Nunez, 446 Mass. 54, 59 (2006); Commonwealth v.
Negron, 441 Mass. 685, 691 (2004). There was some form of
corroboration of the statements from sources other than the
declarants. See Bukin, 467 Mass. at 520-521; Patton, 458 Mass.
at 134; Nunez, 446 Mass. at 59; Negron, 441 Mass. at 691;
Commonwealth v. Mejias, 44 Mass. App. Ct. 948, 949 (1998).
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The victim's statements were internally consistent,
included specific factual details, and were reported to the
police within forty-eight hours. She did not alter her
statements describing these crimes when she applied for her
restraining order or when she testified before the grand jury.
Her statements reporting these crimes to the police were
corroborated by her neighbor, who saw her enter the apartment
and stay for three hours. 3 The victim reported to the neighbor
that she had been raped by the defendant while she was in the
apartment. The victim's statements to the neighbor were made
within hours of her being in the apartment. The police also saw
bruising on the victim's neck. To the extent that the defendant
argues that the victim's statements were inconsistent because
some of them could be interpreted as her minimizing or delaying
disclosure of the defendant's violence against her, we are not
persuaded. Cf. Commonwealth v. King, 445 Mass. 217, 242 (2005)
("ostensible 'delay' in disclosing a sexual assault is not a
reason for excluding evidence of the initial complaint");
Commonwealth v. Oliveira, 431 Mass. 609, 613 (2000) (common
knowledge that victims of domestic violence remain bound in
3 As numerous cases demonstrate, there is no requirement
that each one of a declarant's statements be individually
corroborated before it may be treated as reliable. See, e.g.,
Patton, 458 Mass. at 133; Nunez, 446 Mass. at 59; Commonwealth
v. Henderson, 82 Mass. App. Ct. 674, 679 (2012).
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relationships). The fact that the victim did not disclose the
sexual assault to her mother or the defendant's current romantic
partner does not make the hearsay unreliable.
The child's statements to the police were also internally
consistent, factually detailed, and were based on the child's
personal knowledge. The child's allegations were corroborated
because the victim stated she saw the defendant choking the
child and the child had told a friend about the strangulation
shortly after it had occurred.
Based on the foregoing, the judge did not err in
determining that the hearsay as a whole was substantially
reliable and that the evidence was sufficient to find that the
defendant violated the terms of probation by committing new
criminal offenses.
Order revoking probation and
imposing sentence affirmed.
By the Court (Henry, Grant &
D'Angelo, JJ. 4),
Clerk
Entered: August 21, 2024.
4 The panelists are listed in order of seniority.
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