Commonwealth v. Salvatore ( 2023 )

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22-P-576 Appeals Court
COMMONWEALTH vs. GREGORY J. SALVATORE.
No. 22-P-576.
Bristol. October 2, 2023. – December 14, 2023.
Present: Green, C.J., Milkey, & Grant, JJ.
Criminal Harassment. Probable Cause. Practice, Criminal,
Complaint, Dismissal.
Complaint received and sworn to in the Attleboro Division
of the District Court Department on October 5, 2021.
A motion to dismiss was heard by Edmund C. Mathers, J.
Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.
Robert M. Strasnick for the defendant.
MILKEY, J. The defendant was charged in the District Court
with one count of criminal harassment, G. L. c. 265, § 43A (a).
The alleged victim, SJ, was the current boyfriend of the
defendant's former girlfriend. SJ initiated the prosecution by
filing an application for a criminal complaint pursuant to G. L.
c. 218, § 35A. A clerk-magistrate held two show cause hearings,
2
at one of which SJ provided extensive testimony that served to
supplement his application. Satisfied that probable cause
existed, the clerk-magistrate issued the complaint. The
defendant then moved to dismiss it pursuant to Commonwealth v.
DiBennadetto, 436 Mass. 310, 313 (2002). A District Court judge
allowed that motion after agreeing with the defendant that the
information within the four corners of SJ's application did not
establish probable cause. On the Commonwealth's appeal, we
conclude that the probable cause analysis should have taken into
account SJ's testimony at the show cause hearing, which was
sufficient to establish probable cause. We therefore reverse.
Background. In his handwritten application for a criminal
complaint, which he submitted pro se, SJ alleged that the
defendant had harassed him in various respects on multiple
occasions. SJ specifically alleged that on one date, the
defendant had stood in front of his (SJ's) car while taking
photographs of the car and its license plate.1 The remaining
allegations involved the defendant's targeting of SJ through
SJ's employer's social media account. In some of his postings,
the defendant specifically called SJ a "child abuser" and "child
alienator." The primary focus of the concern that SJ expressed
1 The defendant and his ex-girlfriend had a son together.
The incident in which the defendant stood in front of SJ's car
occurred after the son's soccer game that all three adults
attended.
3
was potential damage to his reputation. However, he also
described the defendant's actions as "a continuous and
deliberate attempt to damage [SJ's] relationship with [his]
girlfriend," and an "escalating pattern of behavior" that was
causing him "substantial emotional distress."
On May 21, 2021, the clerk-magistrate held a show cause
hearing at which SJ testified at length and was represented by
counsel. From the record before us, it appears that no
assistant district attorney was present at the show cause
hearing. The defendant was present and represented by counsel
at the hearing, but he did not testify. The testimony SJ
provided was consistent with the statements he had made in his
application, albeit with significant additional detail. For
example, SJ testified about social media postings that the
defendant had made that described SJ as a "beta male" and
"pathetic creature" who displays "weakness in his eyes" and
"cowers" behind his girlfriend. SJ recounted that on one
occasion, the defendant posted a comment that a fact finder
could find particularly menacing: "I keep begging the universe
not to push me."
In describing the defendant's escalating behavior, SJ also
testified that -- after he and his girlfriend had moved to a new
town -- the defendant's postings indicated that he was
physically present in that town. As SJ put it: "he was never
4
here before, and now he's here, again, nearly every single day."
Such postings appeared with great frequency, by SJ's count, over
170 times in "a little over [sixty] days." According to SJ, he
and his girlfriend "feel like [they're] confined to [their]
home." While SJ acknowledged on cross-examination that the
defendant's postings did not include threats of physical harm,
he testified that he "suffer[s] [from] significant amounts of
emotional distress," as well as "anxiety, fear, [and]
embarrassment."
A follow-up show cause hearing was held on September 10,
2021, although no additional testimony was taken at that time.
Based on what had been presented to him, the clerk-magistrate
issued a criminal complaint charging the defendant with one
count of harassment in violation of G. L. c. 265, § 43A (a). In
completing the form on which SJ's application was filed, the
clerk-magistrate checked the box that indicated that there was
"TESTIMONY RECORDED," and he noted that a recording was
available through the court's "For the Record" (FTR) recording
system.
When the defendant moved to dismiss the complaint pursuant
to DiBennadetto, he was represented by the same attorney who had
appeared at the show cause hearings. Nevertheless, his counsel
did not provide the judge with a transcript of the show cause
hearings, or even mention that the clerk-magistrate had heard
5
testimony. Instead, he asked the judge to determine probable
cause based on the four corners of SJ's application. The
assistant district attorney present at the hearing on the motion
to dismiss -- who up to that point had had no apparent
involvement in the matter -- orally opposed the motion, but did
not file a written opposition. The assistant district attorney
did not point out to the judge that the clerk-magistrate had
heard SJ's testimony before finding probable cause, but instead
asked the judge to determine probable cause based on the
information set forth within the four corners of SJ's
application, as defense counsel had.
The hearing on the motion to dismiss was extremely brief,
amounting to fewer than seven pages of transcript. At the
conclusion of the hearing, the judge ruled that SJ's application
failed to establish probable cause that the defendant had
committed criminal harassment, and he dismissed the complaint
from the bench. The judge's comments at the hearing indicate
that he reasoned that the actions and statements that SJ
ascribed to the defendant in the application either were
protected speech or did not otherwise cross the line into
criminal conduct, however annoying they might be.2
2 Specifically, the judge stated the following:
"I agree that the harassment and the context of the statute
and the harassment prevention order statute is a sort of
6
Discussion. 1. The proper record. We initially address
the procedural question of whether the judge examined probable
cause based on the correct record. The Commonwealth argues that
the judge erred when he looked only to the information within
the four corners of SJ's application and did not consider the
testimony that SJ had provided at the show cause hearing. While
acknowledging that the assistant district attorney should have
brought SJ's testimony to the judge's attention, the
Commonwealth asserts that the judge on his own should have known
that a show cause hearing had been held and that it had been
recorded. See Boston Globe Media Partners, LLC v. Chief Justice
of the Trial Court, 483 Mass. 80, 81 (2019) (requiring that show
narrow definition of harassment; there are lots of vi[le],
unwelcome, uncalled for communications that are protected
under our First Amendment, and I agree with counsel that
the allegations here do not rise to the level of fighting
words. The standing in front of a vehicle and taking
pictures, I suppose if it were a situation where they
couldn't get away, i.e., they were boxed in and they
started to become concerned for their safety, that would be
one thing, but that's not the description; it's just
obnoxiously standing in front of the vehicle and taking a
picture of the license plate.
"The affidavit describes conduct that could be actionable
in a civil session. It could give rise to a complaint for
defamation or tortious in[ter]ference with contractual
relations by going to the website of his employer. There's
all sorts of avenues on the civil side that these
allegations would give rise to. But it's a much different
playing field on the criminal side, and I find that these
allegations do not rise to even a probable cause level of
criminal harassment; therefore, the defendant's motion is
allowed."
7
cause hearings be recorded). Moreover, as noted, the papers
before the judge in fact indicated that there was testimony
available through the FTR system. In response to the
Commonwealth's argument that the judge resolved the issue of
probable cause based on the wrong record, the defendant asserts
that the Commonwealth waived this argument by failing to raise
it at the hearing on the DiBennadetto motion.
Without either party having supplied the relevant
transcripts to him, the judge was not in a position to consider
SJ's testimony unless he sua sponte retrieved, and listened to,
the FTR recordings. Especially when we consider the hectic
reality of District Court motion practice, we assign minimal
fault to what the judge did here. After all, he provided the
litigants precisely what they both asked for: a decision on
probable cause based on the information in the four corners of
SJ's application.
Nevertheless, we agree with the Commonwealth that, where a
clerk-magistrate has found probable cause after hearing a
complainant's testimony, a DiBennadetto motion ordinarily should
be reviewed based on a record that includes such testimony.3 And
3 Of course, in many instances, there may be little
difference between the information provided in the application
for the complaint and the testimony at a show cause hearing.
This is especially true in the context of an application for a
criminal complaint submitted by a police prosecutor, where the
testimony, if any, often adopts, or repeats, what is said on the
8
although the Commonwealth bears some of the responsibility for
misdirecting the judge's focus, the defendant was the moving
party who was challenging the clerk-magistrate's decision and
whose counsel had been present at the show cause hearings. As
such, the defendant was the one who bore the ultimate
responsibility for putting before the judge a complete record of
the evidence considered by the clerk-magistrate, including
transcripts or recordings of the show cause hearings. Under
these circumstances, we conclude that the Commonwealth did not
waive the issue.4
papers. See generally standards 3:00, 3:04, 3:06, 3:07, 3:09,
and 3:10 of the District Court Standards of Judicial Practice:
The Complaint Procedure (Oct. 2008) (noting that process that
applies to applications for criminal complaints filed by private
complainants can be considerably different in practice than that
for those filed by law enforcement officers). In the context of
an application filed by a police prosecutor, we stated in dicta
in Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013), that a
DiBennadetto motion is to be heard based on the four corners of
the application and any attachments thereto such as police
reports, unless the Commonwealth consents otherwise.
4 Commonwealth v. Black, 403 Mass. 675 (1989), a case that
predates DiBennadetto, is not to the contrary. The defendant
there had been charged with violating a law that banned the use
of steel jaw leghold animal traps. Id. at 676. In his motion
to dismiss, the defendant argued that the type of trap he had
used -- described as a "soft catch trapping system" -- was not
covered by the statute. Id. at 676-677. After examining the
trap and the affidavits submitted by the parties, the judge
agreed and dismissed the complaint. Id. On appeal, the
Commonwealth argued that the judge could not have dismissed the
complaint without a full evidentiary hearing. Id. The court
rejected that argument because the Commonwealth had expressly
agreed not to call witnesses at the hearing. Id. at 677-678.
But it is one thing for the Commonwealth to argue on appeal that
9
The question remains how to proceed from here. One option
would be to remand the matter to the District Court for the
judge to reconsider the DiBennadetto motion based on the
transcripts of the show cause hearings. However, those
transcripts are now before us, and the question of probable
cause is one of law. With the underlying merits having been
fully briefed by the parties, we exercise our discretion to
reach them ourselves.
2. The merits. The test for whether a criminal complaint
is supported by probable cause is not a rigorous one. See
Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013). It "does
not require the same type of specific evidence of each element
of the offense as would be needed to support a conviction."
Id., quoting Commonwealth v. Gallant, 453 Mass. 535, 541 (2009).
"All that is required is 'reasonably trustworthy information
. . . sufficient to warrant a prudent [person] in believing that
the defendant had committed . . . an offense" (citations
omitted). Bell, supra. Applying this standard to SJ's
probable cause should have been determined based on evidence
that was never presented, and quite another to argue, as here,
that probable cause should have been determined based on what
was before the clerk-magistrate. Of course, nothing we say
should be read as preventing the Commonwealth from stipulating
that the production of a transcript of a show cause hearing is
unnecessary. Cf. Mass. R. A. P. 8 (b) (1) (B), as appearing in
481 Mass. 1611 (2019).
10
testimony, we conclude that there was probable cause to support
the clerk-magistrate's issuance of the complaint here.
By statute, criminal harassment is defined as follows:
"willfully and maliciously engag[ing] in a knowing pattern of
conduct or series of acts over a period of time directed at a
specific person, which seriously alarms that person and would
cause a reasonable person to suffer substantial emotional
distress." G. L. c. 265, § 43A (a). Case law has interpreted
the "pattern of conduct or series of acts" language as requiring
three separate incidents of harassing conduct. See Commonwealth
v. Welch, 444 Mass. 80, 89-90 (2005).
On the facts present here, little discussion is necessary
with respect to the existence of probable cause for many of the
required elements of the offense. For example, we agree with
the Commonwealth that SJ's testimony readily established
probable cause that the defendant's conduct was "willful[]" and
"malicious[]," because "[t]he self-evident purpose of [the
defendant's] behavior was to distress [SJ]." The facts also
readily established probable cause that a reasonable person
targeted by the defendant's behavior would be seriously alarmed
and suffer substantial emotional distress.5
5 The Supreme Judicial Court has defined "substantial
emotional distress" as more than "merely trifling or passing"
and "markedly greater than . . . commonly experienced as part of
ordinary living." Commonwealth v. Robinson, 444 Mass. 102, 108
11
As the judge appears to have identified, any doubt about
probable cause emerges because of the complicated interplay
between the criminal harassment statute and protections afforded
to individuals by the First Amendment to the United States
Constitution. See Commonwealth v. Bigelow, 475 Mass. 554, 558-
572 (2016) (interpreting and applying criminal harassment
statute in light of First Amendment concerns). See also O'Brien
v. Borowski, 461 Mass. 415, 421-429 (2012) (same with respect to
parallel civil harassment prevention statute). While G. L.
c. 265, § 43A (a), "is a statute directed at a course of
conduct," the Supreme Judicial Court has held that it
"unquestionably . . . reaches speech," provided that the speech
is constitutionally unprotected. Bigelow, supra at 559.
In our view, at least when SJ's testimony is considered,
there was probable cause that the defendant had engaged in at
least three incidents of criminal harassment, notwithstanding
the judge's concerns about the defendant's rights under the
(2005). The record supports the conclusion that the defendant's
repetitive public online targeting of SJ caused SJ to experience
significant distress, and a fact finder at trial could conclude
that such distress was reasonable. See, e.g., Commonwealth v.
Paton, 63 Mass. App. Ct. 215, 221 (2005) (defendant's
"interference with [victim's] work and normal activities" caused
victim reasonable and substantial emotional distress).
12
First Amendment.6 Notably, some of the defendant's conduct at
issue involved his actions rather than speech, such as standing
in front of SJ's car while photographing it.7 See Commonwealth
v. Robinson, 444 Mass. 102, 108 (2005) (relying on defendant's
use of his car to block victim's access to road as one of
requisite incidents of harassment). And to the extent that the
complaint depends on statements that the defendant directed at
SJ on social media, it is important to view those statements in
the context of the defendant's conduct at the time they were
made, including the defendant's indication of his ubiquitous
physical presence in the town where SJ lived. See Bigelow, 475
Mass. at 567-570 (mailing of disturbing letters to wife of
selectman at her home sufficient to support conviction of
criminal harassment). Based on the content, frequency,
duration, and escalating obsessiveness of the defendant's
6 In light of our conclusion, we need not decide whether the
information within the application for the criminal complaint on
its own established probable cause.
7 The judge concluded that the defendant was not blocking
SJ's exit but "just obnoxiously standing in front of the
vehicle." That assessment amounts to fact finding that is not
appropriate at this preliminary stage of the proceedings. A
fact finder at trial might eventually view the defendant's
standing in front of the car in the same de minimis way that the
motion judge did. For purposes of assessing probable cause,
however, the facts are to be viewed in the light most favorable
to the Commonwealth. See Commonwealth v. Geordi G., 94 Mass.
App. Ct. 82, 85 (2018).
13
statements, a fact finder could view them as objectively
threatening and, as such, unprotected speech.8 See id. In
addition, any false accusations that SJ was a child abuser would
be unprotected by the First Amendment.9 See id. at 566 (noting
that defamatory speech is unprotected). See also Commonwealth
v. Johnson, 470 Mass. 300, 309-310 (2014) (relying on false
accusation of child abuse as one of three acts supporting
conviction of criminal harassment). As the Supreme Judicial
Court has made clear, even "in a prosecution for criminal
harassment under § 43A based solely on a defendant's speech, if
8 This conclusion is not negated by the fact that SJ
admitted on cross-examination that the defendant's postings did
not threaten him with physical harm. For one thing, in light of
the fact that SJ specifically testified that he felt "fear," his
comments about the lack of a physical threat can be viewed
simply as acknowledging the undisputed fact that the defendant
did not make any overt threats of physical violence. See
O'Brien, 461 Mass. at 424 ("true threat does not require an
explicit statement of an intention to harm the victim as long as
circumstances support the victim's fearful or apprehensive
response" [quotation and citation omitted]). For another, a
fact finder might well conclude that someone in SJ's position
might have reason to underplay the extent to which he felt
threatened by the defendant.
9 We acknowledge that the defendant's statement that SJ was
a "child abuser" might be viewed in context not as accusing SJ
of engaging in physical or sexual child abuse in the usual
sense, but as an expression of concern that SJ's relationship
with the child's mother might serve to alienate the defendant's
child from him, which the defendant considered a form of child
abuse. However, as noted, for purposes of determining probable
cause, the judge was required to view the facts in the light
most favorable to the Commonwealth. See Geordi G., 94 Mass.
App. Ct. at 85.
14
it cannot be concluded that, as a matter of law, the speech at
issue is constitutionally protected speech, the question whether
the speech fits within a category of unprotected speech
constitutes a question of fact for the fact finder to decide."
Bigelow, supra at 570-571.
Having concluded that the record before the clerk-
magistrate established probable cause to believe that the
defendant violated the criminal harassment statute, we reverse
the order allowing the defendant's motion to dismiss the
complaint.
So ordered.