Commonwealth v. Jeni Pinelo.

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

25-P-1185

COMMONWEALTH

vs.

JENI PINELO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant was

convicted of rape of a child, aggravated by a more than ten-year

age difference, in violation of G. L. c. 265, § 23A (b), and

rape of a child by force, in violation of G. L. c. 265, § 22A.

On appeal, the defendant contends that the judge erred in

admitting the testimony of an investigating police officer and

that such error calls for a reversal of his convictions and a

new trial. We affirm.

Background. On February 10, 2019, a party was held to

celebrate the victim's fifteenth birthday. The defendant, his

wife, and two young children were guests at the party and stayed

overnight with the victim's family. The next day, the victim
stayed home from school and spent the day in her mother's

bedroom to do homework while her mother, stepfather, and the

defendant's wife were all out of the house. The defendant

entered the bedroom twice. The first time, the defendant talked

to the victim about music and left at the victim's request so

that she could continue to do homework. The second time, he

proceeded to touch the victim's feet, legs, and her breasts over

her shirt, all of which the victim explicitly objected to. The

defendant then raped the victim, forcing his penis into her

vagina. Before he left the room, the defendant told the victim

not to tell anyone.

The victim went back to her bedroom and woke up her sister

to tell her certain details about the rape. Neither the victim

nor her sister told their mother about the rape. Several months

later, while attending the wake of the victim's grandmother, the

defendant told his cousin that he had kissed and touched the

victim. The next day, the cousin told the victim's stepfather

what the defendant had said, and the victim's stepfather then

told the victim's mother. After the victim's mother spoke to

the victim, she brought her to the police station.

The victim and her mother met with Watertown police officer

Miguel Colon, who subsequently opened an investigation. At

trial, Officer Colon testified that he initially met with the

victim and her mother at the police station and only spoke with

2
the victim's mother. He also testified that during the

investigation he provided Spanish interpretation for some of the

witnesses including the victim's mother, stepfather, and one

other witness. Officer Colon testified to the defendant's date

of birth and explained that his involvement in the investigation

included accompanying another officer to take photographs of the

victim's home. Officer Colon's testimony contained no details

about the investigation's findings or substantive information

about the victim's allegations.

Discussion. The defendant claims that Officer Colon's

testimony was irrelevant and unfairly corroborated the first

complaint testimony.1 The defendant did not object to the

admission of the testimony, so we review for a substantial risk

of a miscarriage of justice. See Commonwealth v. Gaughan, 99

Mass. App. Ct. 74, 79 (2021).

1 First complaint testimony relates a sexual assault
victim's first disclosure regarding the assault. See
Commonwealth v. King, 445 Mass. 217, 218-219 (2005), cert.
denied, 546 U.S. 1216 (2006). See also Mass. G. Evid. § 413(a)
(2023). In addition to the victim, only one other witness may
testify to the victim's first complaint of the sexual assault.
See King, supra at 219. Unless a law enforcement officer is the
first complaint witness, an officer will not ordinarily testify
to the complaint. Id. at 243. An officer's testimony may,
however, include or imply a victim's complaint of sexual assault
if it serves some purpose other than to corroborate the victim's
testimony and its probative value outweighs its prejudicial
effect. See Commonwealth v. Dargon, 457 Mass. 387, 399-400
(2010). See also Mass. G. Evid. § 413(b) (2023).

3
At oral argument, the defendant conceded that Officer

Colon's testimony regarding the defendant's date of birth was

relevant to the charge of rape of a child aggravated by age

difference, as the Commonwealth was required to establish more

than a ten-year age difference between the defendant and the

victim. G. L. c. 265, § 23A (b). As to the remainder of

Officer Colon's testimony, we note that it offered little in the

way of corroboration of the victim's complaint. On direct

examination, Officer Colon testified only to the names of the

individuals that he interviewed and did not provide any details

about the substance of those interviews. He also explained that

the reason he assisted with the interviews is because he spoke

Spanish. In fact, Officer Colon testified that he spoke with

only the victim's mother and did not speak with the victim at

the police station.

We are not persuaded by the defendant's argument that

Officer Colon's testimony was like the collateral testimony

presented in Commonwealth v. Stuckich, 450 Mass. 449, 457

(2008), where the witness testimony was improper because it

vouched for the victim's credibility and conveyed multiple

reports that the victim had reported the abuse to several

people. Here, unlike the testimony in Stuckich, supra, Officer

Colon's testimony served to explain to the jury the general

course of the investigation and forestall a Bowden defense. See

4
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980) (failure

of authorities to collect evidence -- here, statements from

others with knowledge of case -- is permissible ground on which

to build defense). Particularly where the main thrust of the

defense was that the victim's mother encouraged her to fabricate

allegations for her mother's personal gain, testimony that

investigators spoke with others involved in the case served a

valid purpose.

Moreover, the purpose of limiting the Commonwealth to a

single first complaint is not to hide the fact that the victim

ever spoke of the assault again or that the police were

contacted. Rather, it is to minimize the risk of unfair

bolstering of the victim's testimony and of prejudice to the

defendant by avoiding repetition of the details of the assault.

See King, 445 Mass. at 243. As discussed above, Officer Colon's

testimony did not explicitly or implicitly vouch for the

victim's credibility or disclose any details of the assault.

See Commonwealth v. McCoy, 456 Mass. 838, 851-852 (2010) (no

prejudice from cumulative first complaint testimony where

witness expressed no belief in victim's claims or disclosed

details of allegations). In fact, in Commonwealth v. Arana, 453

Mass. 214, 226 (2009), the Supreme Judicial Court clarified that

the holding in Stuckich was not intended to imply that the

testimony of a police officer "concerning the circumstances

5
giving rise to the police involvement in a sexual assault case

will never be admissible as part of the Commonwealth's case-in-

chief." In short, there was no violation of the first complaint

rule and no substantial risk of miscarriage of justice.

Judgments affirmed.

By the Court (Grant, Walsh &
Brennan, JJ.2),

Clerk

Entered: May 21, 2026.

2 The panelists are listed in order of seniority.

6