Commonwealth v. Christian Cepeda-Ortiz.

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-108

COMMONWEALTH

vs.

CHRISTIAN CEPEDA-ORTIZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2016, the defendant pleaded guilty in the Superior Court

to two counts of armed robbery and one count of armed assault

with intent to rob. On one of the armed robbery counts, the

judge revised the original prison term to a three-year term of

probation to run from and after the sentences on the other

counts. In 2021, the defendant was released from prison and

began his term of probation. In 2022, the defendant was charged

in the District Court with new crimes, which led to the

revocation of his probation and imposition of a sentence. On

appeal, based on the doctrine of issue preclusion, he claims the

judge should not have admitted a 911 telephone recording at his

final probation surrender hearing. We affirm.
Under the doctrine of issue preclusion, sometimes referred

to as collateral estoppel, a party is precluded from

relitigating an issue when (1) the issue has been actually

litigated and determined by a valid and final judgment in a

prior adjudication; (2) the party against whom issue preclusion

is asserted was a party, or was in privity with a party, in the

prior adjudication; and (3) the issue decided in the prior

adjudication was essential to the earlier judgment. Kobrin v.

Bd. of Registration in Med., 444 Mass. 837, 843 (2005); Jarosz

v. Palmer, 436 Mass. 526, 530-531 (2002). See Korn v. Paul

Revere Ins. Co., 83 Mass. App. Ct. 432, 437 (2013). "Although

the doctrine of collateral estoppel has its roots in civil

proceedings, it also applies to criminal cases." Commonwealth

v. Cabrera, 449 Mass. 825, 829 (2007).

Here, based on issue preclusion, 1 the defendant claims that

the revocation judge erred by admitting the 911 telephone call

as an excited utterance because the judge in the underlying

District Court criminal case (trial judge) had excluded the same

call when she denied the Commonwealth's motion in limine to

admit it. We disagree.

1 The parties dispute whether the defendant fairly raised
issue preclusion at the final revocation hearing. Given that
our resolution of the claim does not turn on the standard of our
review, we need not resolve the matter.

2
The trial judge's allowance of the defendant's motion in

limine is not a final judgment for purposes of issue preclusion.

Rather, the judge's order is interlocutory, and Mass. R. Crim.

P. 15 (a) (2), as amended, 476 Mass. 1501 (2017), does not give

the Commonwealth the ability to apply for leave to appeal from

the denial of a motion in limine where the order does not

terminate the prosecution. See Commonwealth v. Arrington, 493

Mass. 478, 480 (2024); Commonwealth v. Anderson, 401 Mass. 133,

135 (1987). 2 Instead, in such situations, the appropriate avenue

for the Commonwealth to seek interlocutory review of a ruling on

a motion in limine is through a petition under G. L. c. 211,

§ 3. Arrington, supra. However, review under G. L. c. 211,

§ 3, does not constitute a right of appeal for purposes of

collateral estoppel. Commonwealth v. Scala, 380 Mass. 500, 506-

507 & n.8 (1980).

Furthermore, although not directly challenged by the

defendant, we add that the 911 call evidence was properly

admitted as an excited utterance and because it was reliable

hearsay. See Commonwealth v. Durling, 407 Mass. 108, 121-122

(1990). See also Commonwealth v. Negron, 441 Mass. 685, 690-692

(2004) (evidence that does not constitute excited utterance may

Even if Mass. R. Crim. P. 15 (a) (2) applied to motions in
2

limine, and the Commonwealth could have sought leave to appeal,
that "possibility was insufficient for collateral estoppel
purposes." Cabrera, 449 Mass. at 830.

3
be admitted as reliable hearsay at probation revocation

hearing). Moreover, given the different standard applicable to

the admission of hearsay evidence at a probation revocation

hearing, the trial judge's ruling in the underlying criminal

case was not the same issue presented in the probation

revocation hearing, and for that reason as well it does not

qualify for an issue preclusion bar. See Krochta v.

Commonwealth, 429 Mass. 711, 715–718 (1999) (collateral estoppel

not available where proceedings have different burdens of

proof). Accordingly, the 911 call evidence was not subject to

issue preclusion, and there was no error in its admission at the

revocation hearing.

Order dated April 8, 2022,
revoking probation and
imposing sentence,
affirmed.

By the Court (Meade,
Englander & Hodgens, JJ. 3),

Assistant Clerk

Entered: June 12, 2024.

3 The panelists are listed in order of seniority.

4