Commonwealth v. Frederick Pinney.

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-772

COMMONWEALTH

vs.

FREDERICK PINNEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

convicted of manslaughter and sentenced to serve nine to ten

years in State prison. 1 He moved for a stay of execution pending

appeal, which was denied by the trial judge in a written

decision and order. The defendant then filed with this court a

motion for a stay pursuant to Mass. R. A. P. 6 (b), 481 Mass.

1608 (2019). A single justice vacated the trial judge's order

and remanded the matter for further consideration. After an

evidentiary hearing at which the defendant's pretrial probation

1 He received credit for more than six and one-half years' time
served. The defendant was charged with murder and held in
custody in 2014. Although the case proceeded to trial in 2016,
a mistrial caused it to be returned to pretrial status, where it
remained during extensive proceedings. The defendant continued
to be held in custody until January 2021, when he was released
on conditions pending retrial. He was placed in custody again
after conviction in March 2023.
officer testified, the trial judge again denied the motion in

another written decision. The defendant then filed another

motion for a stay pursuant to Mass. R. A. P. 6 (b) in this

court. That motion was denied by a different single justice,

who also denied the defendant's subsequent motion for

reconsideration. The matter before us now is the defendant's

consolidated appeal from the single justice's orders denying the

motion for stay and the motion for reconsideration. We affirm.

Discussion. We review a single justice's decision on a

motion for stay of execution pending appeal for error of law or

abuse of discretion. See Commonwealth v. Nash, 486 Mass. 394,

412 (2020). A single justice considering a motion for stay may

proceed in either of two ways: (1) "independent or de novo

mode," in which the single justice considers the matter anew or

(2) "appellate review mode" in which the single justice simply

reviews the correctness of the decision of the trial court. Id.

at 410. Here, the single justice took the latter course and,

discerning no error of law or abuse of discretion, denied the

motion for a stay. We likewise discern no error of law or abuse

of discretion in the single justice's orders denying the motions

for a stay and for reconsideration.

A trial judge's consideration of a motion for a stay of

sentence pending appeal is governed by Mass. R. Crim. P. 31 (a),

as appearing in 454 Mass. 1501 (2009), which provides that, if a

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sentence of imprisonment is imposed upon conviction of a crime,

"the entry of an appeal shall not stay the execution of the

sentence unless the judge imposing it . . . determines in the

exercise of discretion that execution of said sentence shall be

stayed pending the determination of the appeal." Thus, the

grant of a stay is an exception to the rule and committed to the

sound discretion of the judge. See Christie v. Commonwealth,

484 Mass. 397, 400 (2020). In exercising discretion, the trial

judge is guided by our case law which provides that the judge

should evaluate whether the defendant's appeal presents "an

issue which is worthy of presentation to an appellate court, one

which offers some reasonable possibility of a successful

decision in the appeal" as well as "the possibility of flight to

avoid punishment; potential danger to any other person or to the

community; and the likelihood of further criminal acts during

the pendency of the appeal" (citations omitted). Id. The

defendant bears the burden on both issues. See Nash, 486 Mass.

at 404, 406.

In this case, the trial judge determined that the defendant

had failed to meet his burden on both issues; however, the

single justice denied the defendant's motion for a stay after

review of the security issue alone. See Commonwealth v.

McDermott, 488 Mass. 169, 174 (2021) (affirming single justice

denial of stay based on security, even though defendant raised

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issue worthy of appellate review); Commonwealth v. Springfield

Terminal Ry. Co., 77 Mass. App. Ct. 225, 230 (2010) ("Because

the defendants have failed to demonstrate that the single

justice abused her discretion in denying the motion for security

reasons, we need not decide whether the appellate issues they

raise offer some reasonable possibility of a successful decision

on appeal"). We therefore proceed to the issue of security.

As to this issue, a trial judge is to consider "the

possibility of flight to avoid punishment; potential danger to

any other person or to the community; and the likelihood of

further criminal acts during the pendency of the appeal"

(citation omitted). Nash, 486 Mass. at 405. The judge's

calculus may take account of "the seriousness of the crime of

which the defendant was convicted, the strength of the evidence

presented at trial, and the severity of the sentence that the

judge imposed." Id. Relevant factors may include familial

status, roots in the community, employment, prior criminal

record and general attitude and demeanor. See Christie, 484

Mass. at 400. In the end, the trial judge is "to employ . . .

'sound, practical judgment and common sense'" in determining the

security risk posed. Nash, supra, quoting Commonwealth v.

Levin, 7 Mass. App. Ct. 501, 505 (1979).

Here, the trial judge found that the defendant was

convicted of an extremely serious crime involving the death of a

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woman, 2 and that evidence against him at trial was strong.

Acknowledging that the defendant did not flee or commit other

crimes during the period of time that he was on pretrial

release, the judge reasoned that the defendant was facing a

charge of murder in the first degree at the time and had

incentive to conform his behavior in order to present the best

face at trial. The judge also considered that his family and

roots were out of State and that there were insufficient

mechanisms to monitor his behavior and secure his presence in

the Commonwealth. Again, the judge acknowledged that the

defendant had been allowed to live out of State while on

pretrial release with no apparent issues. However, the judge

was concerned with the quality of this pretrial supervision,

essentially consisting of remote check-ins and self-reporting.

Given the role that substance abuse played in the crime, 3 the

judge was particularly concerned about the probation

2 The woman was found naked on the floor of the defendant's
bedroom with several visible wounds and was later determined to
have died from strangulation. See Commonwealth v. Pinney, 97
Mass. App. Ct. 392, 394-395, 395 n.2 (2020).

3 In his motion papers, the defendant argued that the jury's
verdict indicated that the jurors determined that the
defendant's substance abuse played a significant role in his
crime.

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department's inability to provide actual personal supervision

under the release conditions proposed. 4

Despite the reasoning of the trial judge in this regard,

the defendant contends that the judge abused his discretion by

"disparaging" the favorable testimony of the defendant's

probation officer and "ignor[ing]" the officer's substantial

training and experience. He also complains that the judge

"pa[id] short shrift" to a supporting affidavit of a woman with

whom the defendant lived and for whom he worked. The short

answer to the defendant's claims is that weight and credibility

are for the fact finder. See Commonwealth v. Garner, 490 Mass.

90, 94-96 (2022) (weight and credibility determinations made

upon evidentiary hearing committed to discretion of fact

finder). It was within the judge's discretion to give little

4 The defendant criticizes the trial judge's finding that the
defendant's sobriety, a condition of probation, was never
verified. He argues that since he was not required to submit to
drug and alcohol testing as a condition of probation, the
requirement imposed by a probation officer would have been
unlawful. We do not view the judge to have been suggesting drug
and alcohol testing. Rather, the defendant's sobriety could
have been verified by personal observation, which was lacking
due to remote supervision.

Similarly, the defendant challenges the judge's finding
that his compliance with curfew was never verified. He argues,
in a rather circular fashion, that the fact that the defendant
gave no cause to require the probation officer to verify curfew
supports his lack of a security risk. Again, we view the
judge's finding in this regard as simply support for his
skeptical view of the probation officer's report.

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weight to a probation officer who testified that the defendant

was a model probationer, where supervision was minimal.

Likewise, it was within the judge's discretion to give little

weight to an affidavit promising employment to the defendant if

it was in the nature of ad hoc jobs.

The defendant also challenges the trial judge's reasoning

that the defendant's risk of flight was elevated after

conviction for manslaughter. The defendant argues that while on

pretrial release, he had an increased incentive to flee because

he was facing the possibility of a life sentence without parole.

After conviction of manslaughter, he contends, he had a

decreased incentive to flee because he faced only a few years

imprisonment (due to time already served). One could also view

an incentive to flee as lesser pretrial because of the

possibility of acquittal and greater after conviction because of

the certainty of imprisonment. In any event, this factor may be

looked at in many different ways; the question is whether the

way the judge viewed it was outside the range of reasonable

alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014) (abuse of discretion standard). It was not. See Garcia

v. Commonwealth, 486 Mass. 341, 348-349 (2020) (observing that

judge could have reasonably concluded that three-year prison

sentence remaining to serve -- out of five-year sentence, could

have provided significant incentive to flee).

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Finally, the defendant argues that the trial judge's order

"suffers from the same defects as were present in Nash," where

the Supreme Judicial Court held that a single justice of this

court abused her discretion in reviewing the security risk by

relying "very heavily on the serious and abhorrent nature" of

the defendant's crimes and appeared not to give much weight to

other factors. Nash, 486 Mass. at 414. We disagree. The trial

judge in this case devoted two short sentences (within five

pages of analysis devoted to the security risk), to the crime of

which the defendant was convicted. The remainder of the

analysis did focus on other factors including the defendant's

untenable request to reside out of State (where supervision

would be hampered), that neither his family members nor his

current "significant other" offered a proposal to house the

defendant within the Commonwealth, and the lack of any evidence

regarding substance abuse treatment. The judge's analysis of

the security issue was thus not "underinclusive" as in Nash. 5

Id.

As to the defendant's motion for reconsideration presented

to the single justice, the defendant provided the single justice

5 The defendant also argues that the trial judge misstated the
evidence before him by indicating that he had "insufficient
information" regarding the defendant's medical condition.
Although the defendant had submitted a medical record indicating
laboratory results, the import was far from clear.

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with a transcript of the evidentiary hearing on the motion for

stay before the trial judge and argument regarding claimed

contradictions between the evidence and the trial judge's

findings. As the submission merely buttressed the original

motion for stay, the single justice did not abuse his discretion

in denying the motion for reconsideration. See Liberty Square

Dev. Trust v. Worcester, 441 Mass. 605, 611 (2004) (no error in

denying motion for reconsideration which seeks merely "second

bite at the apple").

As the trial judge did not abuse his discretion, the single

justice similarly did not abuse his discretion in denying the

defendant's motions for a stay and for reconsideration.

Orders of the single justice
denying motions for a stay
and for reconsideration
affirmed.

By the Court (Vuono, Singh, &
Englander, JJ. 6),

Assistant Clerk

Entered: January 9, 2024.

6 The panelists are listed in order of seniority.

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