Commonwealth v. Shawn Pacheco.

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-665

COMMONWEALTH

vs.

SHAWN PACHECO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, a dance teacher, was charged with

disseminating matter harmful to a minor, in violation of G. L.

c. 272, § 28. The complaint application alleged that he sent a

photograph of his penis, as well as text messages, to the

thirteen year old victim, one of his dance students, via the

social media application Snapchat. A District Court judge

denied the defendant's motion to dismiss for lack of probable

cause, but granted the defendant's separate motion to dismiss on

the ground that the Commonwealth failed to preserve exculpatory

evidence. The Commonwealth appeals from the dismissal. We

reverse.
Discussion. 1. Preservation of evidence. The

Commonwealth contends that it never possessed the specific

photograph and messages at issue, so it had no duty to preserve

them. We agree. The Commonwealth's duty to preserve

exculpatory evidence grows out of its "duty to disclose

'evidence favorable to an accused upon request.'" Commonwealth

v. Sasville, 35 Mass. App. Ct. 15, 19 (1993), quoting Brady v.

Maryland, 373 U.S. 83, 87 (1963). "A prosecutor's duty of

disclosure only applies to information in the possession of the

prosecutor and [those] persons sufficiently subject to the

prosecutor's control," meaning those "acting, in some capacity,

as agents of the government in the investigation and prosecution

of the case" (quotation and citation omitted). Commonwealth v.

Beal, 429 Mass. 530, 531 (1999). We review an order dismissing

a case based on the Commonwealth's failure to preserve

potentially exculpatory evidence "for a clear abuse of

discretion" (citation omitted). Commonwealth v. Cintron, 438

Mass. 779, 784 (2003).

Despite conducting a forensic investigation of the

defendant's phone and the victim's iPad, and executing three

search warrants seeking Snapchat records, the Commonwealth was

unable to recover the photograph and messages at issue. The

defendant makes no developed argument, nor is there evidence

suggesting, that the private entity controlling the Snapchat

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application (which we refer to as "Snap") was "sufficiently

subject to the prosecutor's control" for the Commonwealth's duty

to disclose to apply to materials in that entity's possession.

See Beal, 429 Mass. at 531. Cf. Commonwealth v. Harwood, 432

Mass. 290, 294, 298-299 (2000) (Commonwealth responsible for

loss of document mishandled by State investigative agency that

worked closely with prosecutor's office). We see no evidence

that the Commonwealth or anyone acting subject to the

Commonwealth's control ever possessed the photograph or

messages.

The defendant argues that this case is like Sasville, where

this court determined that the Commonwealth was grossly

negligent in failing to preserve potentially exculpatory

evidence. In that case, a police officer advised a third party,

who was holding evidence in anticipation of the Commonwealth's

testing it, that it could be destroyed. Sasville, 35 Mass. App.

Ct. at 18, 23-24. The defendant does not adequately address the

glaring difference between Sasville and the facts before us now.

Here, the Commonwealth never advised Snap that the latter could

destroy the photograph or messages. Further, there is no

evidence that Snap or its agents ever lost or affirmatively

destroyed the photograph, as opposed to the photographs having

been deleted by the normal operation of the Snapchat

application. See generally Commonwealth v. Carrasquillo, 489

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Mass. 107, 108-110 (2022) (describing temporary visibility of

Snapchat photographs).

The Commonwealth's inability to acquire the photograph and

messages here is a far cry from advising a third party that

potentially exculpatory evidence could be destroyed, nor is the

Commonwealth's inability to obtain evidence here a violation of

its duty to preserve evidence. See Sasville, 35 Mass. App. Ct.

at 19-24. The Commonwealth has no duty to preserve evidence it

never possessed or controlled. The judge erred and thus abused

his discretion by dismissing the complaint on the ground that

the Commonwealth failed to preserve exculpatory evidence.

2. Probable cause. The defendant asks us to affirm the

dismissal on the alternate ground that the evidence in the

complaint application failed to establish probable cause. See

Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). We

decline to do so.

"[P]robable cause exists where . . . the facts and

circumstances within the knowledge of police are enough to

warrant a prudent person in believing that the individual

arrested has committed . . . an offense." Commonwealth v.

Leonard, 90 Mass. App. Ct. 187, 190 (2016), quoting Commonwealth

v. Stewart, 469 Mass. 257, 262 (2014). See Commonwealth v.

Salvatore, 103 Mass. App. Ct. 605, 610 (2023). "A demonstration

of probable cause 'requires more than mere suspicion but

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something less than evidence sufficient to warrant a

conviction.'" Leonard, supra, quoting Commonwealth v. Roman,

414 Mass. 642, 643 (1993). "A motion to dismiss for lack of

probable cause 'is decided from the four corners of the

complaint application . . . .'" Leonard, supra, quoting

Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013). "The

complaint application must include information to support

probable cause as to each essential element of the offense."

Id. at 565-566. We review whether there is probable cause to

issue a criminal complaint de novo and view the evidence in the

light most favorable to the Commonwealth. Commonwealth v.

Russo, 494 Mass. 356, 360-361 (2024).

The crime of disseminating matter harmful to minors occurs

when a defendant "purposefully disseminates to a person [the

defendant] knows or believes to be a minor any matter harmful to

minors . . . ." G. L. c. 272, § 28. See Commonwealth v. Jones,

471 Mass. 138, 141 (2015). Here, it is reasonable to infer from

the police report attached to the complaint application that the

defendant purposefully disseminated the photograph and the

messages to a person he knew or believed to be a minor. The

defendant does not argue that there was no probable cause as to

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these elements. Nor does he dispute that such materials

constitute "matter" within the meaning of the statute.1

What the defendant challenges is whether the matter at

issue was harmful to minors. Matter is "harmful to minors" if

it is either "obscene" (not argued here) or, taken as a whole,

"(1) describes or represents nudity, sexual conduct or sexual

excitement, so as to appeal predominantly to the prurient

interest of minors; (2) is patently contrary to prevailing

standards of adults in the county where the offense was

committed as to suitable material for such minors; and (3) lacks

serious literary, artistic, political or scientific value for

minors." G. L. c. 272, § 31.

"Where First Amendment rights are implicated with respect

to a determination whether materials are obscene or prurient, an

appellate court must conduct an independent review of the

materials to determine de novo whether the materials fall within

those categories." Commonwealth v. Militello, 66 Mass. App. Ct.

1 "Matter" is defined as "any handwritten or printed
material, visual representation . . . including, but not limited
to . . . pictures, photographs . . . or any electronic
communication including, but not limited to, electronic mail,
instant messages, text messages, and any other communication
created by means of use of the Internet or wireless network
. . . ." G. L. c. 272, § 31. Here, the statement of facts in
support of the complaint application specified that the matter
at issue includes the photograph and accompanying messages
received by the victim from the defendant's Snapchat account;
the attached police report specified other such messages.

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325, 331 (2006). See Commonwealth v. Rex, 469 Mass. 36, 41-42

(2014) (citing Militello with approval). While the defendant

argues that, to establish probable cause, the Commonwealth must

produce copies of the matter for the court to review, the law is

clear that when the matter is not available, "testimony may

provide an adequate substitute for the introduction in evidence

of the offending material . . . ." Militello, supra at 333.

See Ferrari v. Commonwealth, 448 Mass. 163, 167-169 & nn.11, 13

(2007). We therefore set forth the victim's descriptions of the

photograph and messages, and then consider whether they satisfy

the three-part definition of "harmful to minors."

According to the victim's statements in the police report,

the photograph displayed the defendant smiling and lying on a

bed in the dark with the front flash of the camera phone on.

The defendant used one hand to hold the camera phone, and the

other hand rested on his chest with his penis "obviously"

visible on his stomach. The photograph included the caption

"Never!" After receiving the photograph, the victim received

another Snapchat message from the defendant requesting that the

victim "send one back" to the defendant. After the victim sent

the defendant a photograph of his own penis, the victim received

yet another Snapchat message from the defendant, commenting that

the victim's penis was "[b]ig for a growing boy." The defendant

expressed disbelief that the photograph sent by the victim was

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real, and thus requested that the victim send him a "live

photo," but the victim did not do so "because he knew he should

not."2

We turn to the three-part definition of "harmful to

minors." First, based on the police report it is reasonable to

infer that, taken as a whole, the matter included nudity and

appealed predominantly to the prurient interest of minors. A

matter appeals to the prurient interests of minors if it appeals

"solely and numbingly to the obsessively sexual (i.e., prurient)

interest of the minors" (quotation and citation omitted).

Militello, 66 Mass. App. Ct. at 332. The victim described the

photograph as including an exposed penis that "[one] can

obviously see." As noted, after sending the photograph of his

penis to the victim, the defendant requested the victim send him

a photograph of his own penis, commented on the size of the

victim's penis, and then requested a "live photo," inferably of

the victim's penis. The facts alleged in the complaint

application suggest that the matter included more than nudity

alone and, instead, showed the defendant's attempt to convince

the victim to exchange photographs of penises with him. Even

without looking at the larger context of other messages or

2 The police report states that the phrase "live photo"
refers to a "direct photo through" Snapchat; inferably, a "live"
photo shows some movement or action, i.e., is similar to a short
video.

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statements described in the police report, this was enough to

satisfy the first part of the definition of "harmful to minors."

Second, it is reasonable to infer that the photograph and

messages the victim received were patently contrary to

prevailing standards of adults as to suitable material for

minors. See G. L. c. 272, § 31. The police report describes a

text message the victim's mother received from the defendant in

which he recounted a conversation with the victim where he

stated "how wrong it was" for him to send the victim the

photograph, "apologized profusely to [the victim,] and . . .

promise[d] it would never happen again." Also, according to the

victim, the defendant admitted that he was "100% wrong in this

entire situation."

Third, as for whether the matter has serious literary,

artistic, political or scientific value for minors, the

defendant does not argue that it did, nor do we see anything in

the police report so suggesting. The defendant did not suggest

that the photograph met any of these criteria, but rather

referred to it as a "mistake" he made when he was "very

intoxicated." It is reasonable to infer that a "selfie" of an

adult in bed displaying his penis and messages requesting nude

photographs over Snapchat do not have such serious value for

minors.

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Conclusion. The judge abused his discretion by dismissing

the complaint on the ground that the Commonwealth failed to

preserve exculpatory evidence. Moreover, the complaint

application established probable cause to believe the defendant

disseminated matter harmful to minors. Therefore, we decline to

affirm the dismissal of the complaint on the alternative ground

the defendant suggests.3

Order dismissing complaint
reversed.

By the Court (Sacks,
Hershfang & Tan, JJ.4),

Clerk

Entered: April 29, 2025.

3 Pursuant to Mass. R. Crim. P. 15 (d), as amended, 476
Mass. 1501 (2017), the defendant may file a request for
appellate attorney's fees and costs, and supporting affidavits,
within thirty days of this decision. The Commonwealth shall
then have thirty days to respond. See generally Russo, 494
Mass. at 367 n.10.

4 The panelists are listed in order of seniority.

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