Commonwealth v. Ronnie E. Phillips.

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

24-P-723

COMMONWEALTH

vs.

RONNIE E. PHILLIPS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the

defendant, Ronnie E. Phillips, was convicted of two counts of

assault and battery on a family or household member.1 He argues

on appeal that (1) the judge erred in admitting in evidence

medical records containing inadmissible hearsay; (2) his motion

for a required finding of not guilty should have been allowed;

and (3) the prosecutor's comments in closing argument created a

substantial risk of a miscarriage of justice.2 We affirm.

1The defendant was found not guilty of assault and battery
by means of a dangerous weapon (to wit a hammer).

2In his brief, the defendant also argued that the judge
erred in permitting the victim to testify to certain statements
made by the defendant to her shortly after the assaults. At
oral argument, however, he acknowledged that the defendant's
Background. In 2018, the defendant and the victim met

online and started dating. They dated for "[o]ver a year." On

May 18, 2019, they were driving together, and an argument

occurred. The defendant accused the victim of cheating, and he

yelled at her, belittled her, and at some point, he "smacked"

her "across the face." In response, the victim grabbed and

scratched him. As a result, the defendant "got more enraged,"

grabbed a hammer from the back seat of the vehicle and struck

the victim on the head with it. At some point, he had taken the

victim's cell phone and placed it under his leg. The defendant

stayed in the car, refused to return the cell phone to the

victim, "[a]nd that's basically why [she] stayed in the car"

with him. Soon thereafter, the defendant drove to a beach and

parked the vehicle. After the victim tried to "grab [the cell

phone] from him," the defendant punched her in the face three

times, bit her face, and threw the cell phone into the water.

The victim then got out of the car, saw another car at the

beach, realized that she was bleeding, and spoke to a person in

that car. She asked him to call 911, but the defendant "c[a]me

up behind" her. She told the person in the other car to

statements were admissible. We agree with this concession, as
the statements were admissible as statements of a party
opponent, which are not hearsay. See Commonwealth v. Allison,
434 Mass. 670, 676 n.5 (2001); Mass. G. Evid. § 801 (d) (2) (A)
(2022).

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discontinue the call, and testified she did so because she was

"in fear for [her] life." The defendant told the victim "to

come with him because he was going to be arrested and that no

one's going to believe [her], and [they're] both going to be

arrested." The victim then went with the defendant to his

house. There, the defendant told her that he had "blacked out."

He also tried to help her clean herself up from the injuries

that he had inflicted and told her to say that she "was mugged

while [she] was out of town" if asked about her injuries.

The day after the incident, the victim's mother took

photographs of the victim's injuries.3 Approximately two weeks

later, on June 2, 2019, the victim reported the incident to the

police. She waited to disclose the incident to police because

she was in fear due to the "aggressiveness of the assault." On

June 7, the victim went to a hospital because she "still had a

lot of swelling in [her] face," and still had a lot of pain.

Copies of the medical records from her hospital visit were

admitted in evidence as an exhibit.

The defense used cross-examination of the victim and

closing argument to argue that the victim was not credible; that

the medical records did not demonstrate that the victim had

3 Copies of photographs depicting the victim's injuries and
the victim's bloody clothing were admitted in evidence as
exhibits at trial.

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sustained serious injuries; that the photographs depicting her

alleged injuries and the bloody clothing were not dated; that

her clothing was not subjected to any forensic analysis; and

that she delayed in contacting the police and going to the

hospital despite myriad opportunities to do so. Furthermore,

defense counsel referenced the medical records in closing

argument and contended that "you'll see there's really no

injury. . . . There's nothing there. Absolutely nothing."

Discussion. 1. Admission of medical records. The

defendant contends that the judge erred in admitting the

victim's medical records because the records contained

inadmissible statements, such as references to the victim having

been assaulted. The admissibility of the medical records was

raised pretrial via the Commonwealth's motion in limine to admit

the medical records.4 After hearing from both parties, the judge

allowed the Commonwealth's motion, subject to the parties

agreeing on redactions. Defense counsel subsequently argued

that the redactions were insufficient and stated, "I think that

I'm going to object to these records coming in the way they

are." In response, the judge advised that he would address that

issue after jury empanelment. Following empanelment, the judge

4 The defendant also filed a motion to redact the medical
records. As discussed, infra, the judge's ruling on the
Commonwealth's motion likewise addressed the substance of the
defendant's motion.

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heard the parties' arguments, and then the following exchange

occurred:

Judge: "[I]s the part where it says, 'Urgent care for
facial bones assault three weeks ago where she was struck
in the face and head with a hammer. Patient endorses she
feels safe in her current environment.' Is that what
you're objecting to?"

Defense counsel: "Yes."

The judge then ruled that the portion of the medical records

that stated that the victim was struck in the head with a hammer

was a statement made for purposes of medical diagnosis and was

admissible. The judge agreed with defense counsel that the

remaining portion that was the subject of his objection would be

redacted. Defense counsel objected to the judge's ruling.

Otherwise, the defendant did not object to any other portion of

the medical records.5 Thus, we review the objected-to portion of

the medical records for prejudicial error, see Commonwealth v.

Cole, 473 Mass. 317, 321 (2015), and limit our review regarding

the remaining references now contested on appeal to determine

5 The defendant acknowledged at oral argument that the
objection at trial pertained only to the statement discussed
above, at the second page of the medical records, and did not
preserve the remaining concerns regarding repeated references to
"assault" and a "physical assault." We appreciate appellate
counsel's candor in this regard.

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whether any error created a substantial risk of a miscarriage of

justice. See Commonwealth v. Dargon, 457 Mass. 387, 397 (2010).6

With respect to the objected to portion of the medical

records, the defendant's fundamental argument is that the

medical records referenced the patient's statement that "she was

struck with a hammer on the right side of her head." This

contention fails because this information falls within the

medical record exception to the hearsay rule as it relates to a

potential cause of the victim's injuries. See G. L. c. 233,

§ 79. See also Commonwealth v. McGann, 484 Mass. 312, 320

(2020); Dargon, 457 Mass. at 395-396. We further note that the

jury acquitted the defendant of assault and battery by means of

a dangerous weapon -- i.e., the one count involving the use of

the hammer -- and thus discern no prejudice in any event. See

Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997).

As to the unpreserved errors, the defendant argues that the

repeated references to "assault" and "[i]njury due to physical

assault" constituted error. In evaluating whether any error

6 Our review is somewhat hampered because only the
unredacted medical records, and not the redacted version that
went to the jury, have been included in the record appendix. In
addition, the defendant did not move to correct or modify the
record pursuant to Mass. R. A. P. 8 (e), as appearing in 481
Mass. 1611 (2019). In any event, for the reasons stated herein,
we are persuaded that the admission of the medical records
neither constituted prejudicial error nor created a substantial
risk of a miscarriage of justice.

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created a substantial risk of a miscarriage of justice in this

context, we consider: (1) whether there was error; (2) what

prejudice, if any, the defendant suffered as a result of the

error; (3) whether the error in the context of the entire trial

materially influenced the verdict; and (4) whether trial

counsel's failure to object was a reasonable tactical decision.

See Dargon, 457 Mass. at 397. The Commonwealth acknowledged

that the failure to redact the references to "assault" in the

present context was error. Nonetheless, we discern no palpable

prejudice. The jury were well aware that a claim of assault

formed the basis of the charges, and the medical records added

nothing to that awareness. Having reviewed the entire trial

record, we are persuaded that the error did not materially

affect the jury. Moreover, through effective cross-examination

and closing argument, defense counsel used the medical records

to demonstrate that the victim's claimed injuries were not

supported by the content of and purported conclusions within the

medical records. Defense counsel further used the medical

records to show potential inconsistencies in the victim's

testimony. Because the defendant did not file a motion for new

trial arguing that trial defense counsel was ineffective for

failing to redact or move to strike the references to "assault,"

the record before us does not include direct evidence of

counsel's strategy. Contrast Commonwealth v. Gardner, 102 Mass.

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App. Ct. 299, 313 (2023). Again, defense counsel directed the

jury to the medical records and their content, highlighting what

he argued were inconsistencies between the victim's trial

testimony and those records -- i.e., the very records the

defendant now contends should have been excluded. In this

context, defense counsel's refraining from objecting to the

references to "assault" may have been a tactical decision. In

short, without a motion for a new trial, and on the record

before us, we discern no substantial risk of a miscarriage of

justice.7 See Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 697

(2015).

2. Sufficiency of evidence. We review the denial of a

motion for required finding of not guilty to determine "whether,

after viewing the evidence in the light most favorable to the

7 The defendant does not raise a claim of ineffective
assistance of counsel on appeal. To the extent that his
arguments note the failure of defense counsel to object at
trial, however, it is well established "that the preferred
method for raising a claim of ineffective assistance of counsel
is through a motion for a new trial." Commonwealth v. Zinser,
446 Mass. 807, 810 (2006). "Relief on a claim of ineffective
assistance based on the trial record is the weakest form of such
a claim because it is 'bereft of any explanation by trial
counsel for his actions and suggestive of strategy contrived by
a defendant viewing the case with hindsight.'" Commonwealth v.
Gorham, 472 Mass. 112, 116 n.4 (2015), quoting Commonwealth v.
Peloquin, 437 Mass. 204, 210 n.5 (2002). Relief may be granted
on such a claim, however, "when the factual basis of the claim
appears indisputably on the trial record." Commonwealth v.
Davis, 481 Mass. 210, 223 (2019), quoting Gorham, supra. Here,
we cannot say on this record that defense counsel's failure to
object was a manifestly unreasonable tactical decision.

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prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See also

Mass. R. Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995).

Reasonable inferences may be drawn from the evidence, see

Commonwealth v. Bush, 427 Mass. 26, 30 (1998), and need only be

reasonable and possible, not necessary or inescapable. See

Commonwealth v. Morgan, 449 Mass. 343, 349 (2007). Here, even

setting aside the medical records, the victim's testimony

combined with the photographs depicting her injuries was more

than sufficient to meet the Latimore standard. The judge did

not err in denying the defendant's motion.

3. Closing argument. The defendant claims that various

errors in the prosecutor's closing argument created a

substantial risk of a miscarriage of justice. The claims are

unavailing.

We consider the challenged statements in the context of the

entire closing, the judge's instructions to the jury, and the

evidence at trial. See Commonwealth v. Martinez, 476 Mass. 186,

198 (2017). "A new trial will be ordered only in the

extraordinary situation where, after such a review, we are left

with uncertainty that the defendant's guilt has been fairly

adjudicated" (citation omitted). Commonwealth v. Azar, 435

9
Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005). See

Commonwealth v. McDermott, 493 Mass. 403, 416-418 (2024).

The defendant first claims that the prosecutor erred by

telling the jury to look at the medical records, including the

reference to the victim being "assaulted three weeks ago with a

hammer in the face." We first note that defense counsel asked

the jury to review the medical records and highlighted them in

his closing argument. It is thus not surprising in this context

that the prosecutor would likewise reference the same records.

That notwithstanding, we will assume for purposes of our

analysis that the prosecutor should not have referenced the

portion of the records involving the hammer. As noted above,

the jury acquitted the defendant of the assault and battery by

means of a dangerous weapon count. See Commonwealth v.

Lassiter, 80 Mass. App. Ct. 125, 132 (2011) (that jury acquitted

defendant of certain charges suggests they were not swayed by

prosecutor's excesses). Further, this alleged error, viewed in

the context of the closing arguments as a whole and in view of

the evidence at trial, did not create a substantial risk of a

miscarriage of justice. The judge instructed the jury multiple

times that closing arguments are not evidence. He further

instructed the jury that the defendant is entitled to a verdict

based solely on the evidence and not based on sympathy, bias, or

prejudice. See Commonwealth v. Anderson, 445 Mass. 195, 209-210

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(2005) (judge mitigated any potential prejudice by instructing

jurors, inter alia, "not to base their verdicts on any sympathy

or emotion"). See also Commonwealth v. Hernandez, 473 Mass.

379, 392 (2015) (jury presumed to follow instructions). That

the defendant did not object to the prosecutor's statements at

trial also "tends to support the inference that the prosecutor's

misstatement was not so egregious and prejudicial as [he] now

claims." Commonwealth v. Maynard, 436 Mass. 558, 571 (2002).

Of further note, "[w]e ascribe a certain level of sophistication

to the jury, and, [on this record], have little doubt that they

would not have been swayed by this [misstatement]" (citation

omitted). Commonwealth v. Kapaia, 490 Mass. 787, 805 (2022).

Therefore, appellate relief is not warranted.8

Judgments affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.9),

Clerk

Entered: January 8, 2026.

8 The defendant also argues that the prosecutor appealed to
the jurors' emotions and sympathy for the victim by referencing
the victim's fear in the face of the sheer brutality of the
assault. The brief comment was grounded in the evidence, as the
victim testified that she declined to disclose the assaults to
the police or go to the hospital for these very reasons. The
statement was not improper.

9 The panelists are listed in order of seniority.

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