Commonwealth v. Salvatore

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22-P-576 Appeals Court

COMMONWEALTH vs. GREGORY J. SALVATORE.

No. 22-P-576.

Bristol. October 2, 2023. – December 14, 2023.

Present: Green, C.J., Milkey, & Grant, JJ.

Criminal Harassment. Probable Cause. Practice, Criminal,
Complaint, Dismissal.

Complaint received and sworn to in the Attleboro Division
of the District Court Department on October 5, 2021.

A motion to dismiss was heard by Edmund C. Mathers, J.

Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.
Robert M. Strasnick for the defendant.

MILKEY, J. The defendant was charged in the District Court

with one count of criminal harassment, G. L. c. 265, § 43A (a).

The alleged victim, SJ, was the current boyfriend of the

defendant's former girlfriend. SJ initiated the prosecution by

filing an application for a criminal complaint pursuant to G. L.

c. 218, § 35A. A clerk-magistrate held two show cause hearings,
2

at one of which SJ provided extensive testimony that served to

supplement his application. Satisfied that probable cause

existed, the clerk-magistrate issued the complaint. The

defendant then moved to dismiss it pursuant to Commonwealth v.

DiBennadetto, 436 Mass. 310, 313 (2002). A District Court judge

allowed that motion after agreeing with the defendant that the

information within the four corners of SJ's application did not

establish probable cause. On the Commonwealth's appeal, we

conclude that the probable cause analysis should have taken into

account SJ's testimony at the show cause hearing, which was

sufficient to establish probable cause. We therefore reverse.

Background. In his handwritten application for a criminal

complaint, which he submitted pro se, SJ alleged that the

defendant had harassed him in various respects on multiple

occasions. SJ specifically alleged that on one date, the

defendant had stood in front of his (SJ's) car while taking

photographs of the car and its license plate.1 The remaining

allegations involved the defendant's targeting of SJ through

SJ's employer's social media account. In some of his postings,

the defendant specifically called SJ a "child abuser" and "child

alienator." The primary focus of the concern that SJ expressed

1 The defendant and his ex-girlfriend had a son together.
The incident in which the defendant stood in front of SJ's car
occurred after the son's soccer game that all three adults
attended.
3

was potential damage to his reputation. However, he also

described the defendant's actions as "a continuous and

deliberate attempt to damage [SJ's] relationship with [his]

girlfriend," and an "escalating pattern of behavior" that was

causing him "substantial emotional distress."

On May 21, 2021, the clerk-magistrate held a show cause

hearing at which SJ testified at length and was represented by

counsel. From the record before us, it appears that no

assistant district attorney was present at the show cause

hearing. The defendant was present and represented by counsel

at the hearing, but he did not testify. The testimony SJ

provided was consistent with the statements he had made in his

application, albeit with significant additional detail. For

example, SJ testified about social media postings that the

defendant had made that described SJ as a "beta male" and

"pathetic creature" who displays "weakness in his eyes" and

"cowers" behind his girlfriend. SJ recounted that on one

occasion, the defendant posted a comment that a fact finder

could find particularly menacing: "I keep begging the universe

not to push me."

In describing the defendant's escalating behavior, SJ also

testified that -- after he and his girlfriend had moved to a new

town -- the defendant's postings indicated that he was

physically present in that town. As SJ put it: "he was never
4

here before, and now he's here, again, nearly every single day."

Such postings appeared with great frequency, by SJ's count, over

170 times in "a little over [sixty] days." According to SJ, he

and his girlfriend "feel like [they're] confined to [their]

home." While SJ acknowledged on cross-examination that the

defendant's postings did not include threats of physical harm,

he testified that he "suffer[s] [from] significant amounts of

emotional distress," as well as "anxiety, fear, [and]

embarrassment."

A follow-up show cause hearing was held on September 10,

2021, although no additional testimony was taken at that time.

Based on what had been presented to him, the clerk-magistrate

issued a criminal complaint charging the defendant with one

count of harassment in violation of G. L. c. 265, § 43A (a). In

completing the form on which SJ's application was filed, the

clerk-magistrate checked the box that indicated that there was

"TESTIMONY RECORDED," and he noted that a recording was

available through the court's "For the Record" (FTR) recording

system.

When the defendant moved to dismiss the complaint pursuant

to DiBennadetto, he was represented by the same attorney who had

appeared at the show cause hearings. Nevertheless, his counsel

did not provide the judge with a transcript of the show cause

hearings, or even mention that the clerk-magistrate had heard
5

testimony. Instead, he asked the judge to determine probable

cause based on the four corners of SJ's application. The

assistant district attorney present at the hearing on the motion

to dismiss -- who up to that point had had no apparent

involvement in the matter -- orally opposed the motion, but did

not file a written opposition. The assistant district attorney

did not point out to the judge that the clerk-magistrate had

heard SJ's testimony before finding probable cause, but instead

asked the judge to determine probable cause based on the

information set forth within the four corners of SJ's

application, as defense counsel had.

The hearing on the motion to dismiss was extremely brief,

amounting to fewer than seven pages of transcript. At the

conclusion of the hearing, the judge ruled that SJ's application

failed to establish probable cause that the defendant had

committed criminal harassment, and he dismissed the complaint

from the bench. The judge's comments at the hearing indicate

that he reasoned that the actions and statements that SJ

ascribed to the defendant in the application either were

protected speech or did not otherwise cross the line into

criminal conduct, however annoying they might be.2

2 Specifically, the judge stated the following:

"I agree that the harassment and the context of the statute
and the harassment prevention order statute is a sort of
6

Discussion. 1. The proper record. We initially address

the procedural question of whether the judge examined probable

cause based on the correct record. The Commonwealth argues that

the judge erred when he looked only to the information within

the four corners of SJ's application and did not consider the

testimony that SJ had provided at the show cause hearing. While

acknowledging that the assistant district attorney should have

brought SJ's testimony to the judge's attention, the

Commonwealth asserts that the judge on his own should have known

that a show cause hearing had been held and that it had been

recorded. See Boston Globe Media Partners, LLC v. Chief Justice

of the Trial Court, 483 Mass. 80, 81 (2019) (requiring that show

narrow definition of harassment; there are lots of vi[le],
unwelcome, uncalled for communications that are protected
under our First Amendment, and I agree with counsel that
the allegations here do not rise to the level of fighting
words. The standing in front of a vehicle and taking
pictures, I suppose if it were a situation where they
couldn't get away, i.e., they were boxed in and they
started to become concerned for their safety, that would be
one thing, but that's not the description; it's just
obnoxiously standing in front of the vehicle and taking a
picture of the license plate.

"The affidavit describes conduct that could be actionable
in a civil session. It could give rise to a complaint for
defamation or tortious in[ter]ference with contractual
relations by going to the website of his employer. There's
all sorts of avenues on the civil side that these
allegations would give rise to. But it's a much different
playing field on the criminal side, and I find that these
allegations do not rise to even a probable cause level of
criminal harassment; therefore, the defendant's motion is
allowed."
7

cause hearings be recorded). Moreover, as noted, the papers

before the judge in fact indicated that there was testimony

available through the FTR system. In response to the

Commonwealth's argument that the judge resolved the issue of

probable cause based on the wrong record, the defendant asserts

that the Commonwealth waived this argument by failing to raise

it at the hearing on the DiBennadetto motion.

Without either party having supplied the relevant

transcripts to him, the judge was not in a position to consider

SJ's testimony unless he sua sponte retrieved, and listened to,

the FTR recordings. Especially when we consider the hectic

reality of District Court motion practice, we assign minimal

fault to what the judge did here. After all, he provided the

litigants precisely what they both asked for: a decision on

probable cause based on the information in the four corners of

SJ's application.

Nevertheless, we agree with the Commonwealth that, where a

clerk-magistrate has found probable cause after hearing a

complainant's testimony, a DiBennadetto motion ordinarily should

be reviewed based on a record that includes such testimony.3 And

3 Of course, in many instances, there may be little
difference between the information provided in the application
for the complaint and the testimony at a show cause hearing.
This is especially true in the context of an application for a
criminal complaint submitted by a police prosecutor, where the
testimony, if any, often adopts, or repeats, what is said on the
8

although the Commonwealth bears some of the responsibility for

misdirecting the judge's focus, the defendant was the moving

party who was challenging the clerk-magistrate's decision and

whose counsel had been present at the show cause hearings. As

such, the defendant was the one who bore the ultimate

responsibility for putting before the judge a complete record of

the evidence considered by the clerk-magistrate, including

transcripts or recordings of the show cause hearings. Under

these circumstances, we conclude that the Commonwealth did not

waive the issue.4

papers. See generally standards 3:00, 3:04, 3:06, 3:07, 3:09,
and 3:10 of the District Court Standards of Judicial Practice:
The Complaint Procedure (Oct. 2008) (noting that process that
applies to applications for criminal complaints filed by private
complainants can be considerably different in practice than that
for those filed by law enforcement officers). In the context of
an application filed by a police prosecutor, we stated in dicta
in Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013), that a
DiBennadetto motion is to be heard based on the four corners of
the application and any attachments thereto such as police
reports, unless the Commonwealth consents otherwise.

4 Commonwealth v. Black, 403 Mass. 675 (1989), a case that
predates DiBennadetto, is not to the contrary. The defendant
there had been charged with violating a law that banned the use
of steel jaw leghold animal traps. Id. at 676. In his motion
to dismiss, the defendant argued that the type of trap he had
used -- described as a "soft catch trapping system" -- was not
covered by the statute. Id. at 676-677. After examining the
trap and the affidavits submitted by the parties, the judge
agreed and dismissed the complaint. Id. On appeal, the
Commonwealth argued that the judge could not have dismissed the
complaint without a full evidentiary hearing. Id. The court
rejected that argument because the Commonwealth had expressly
agreed not to call witnesses at the hearing. Id. at 677-678.
But it is one thing for the Commonwealth to argue on appeal that
9

The question remains how to proceed from here. One option

would be to remand the matter to the District Court for the

judge to reconsider the DiBennadetto motion based on the

transcripts of the show cause hearings. However, those

transcripts are now before us, and the question of probable

cause is one of law. With the underlying merits having been

fully briefed by the parties, we exercise our discretion to

reach them ourselves.

2. The merits. The test for whether a criminal complaint

is supported by probable cause is not a rigorous one. See

Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013). It "does

not require the same type of specific evidence of each element

of the offense as would be needed to support a conviction."

Id., quoting Commonwealth v. Gallant, 453 Mass. 535, 541 (2009).

"All that is required is 'reasonably trustworthy information

. . . sufficient to warrant a prudent [person] in believing that

the defendant had committed . . . an offense" (citations

omitted). Bell, supra. Applying this standard to SJ's

probable cause should have been determined based on evidence
that was never presented, and quite another to argue, as here,
that probable cause should have been determined based on what
was before the clerk-magistrate. Of course, nothing we say
should be read as preventing the Commonwealth from stipulating
that the production of a transcript of a show cause hearing is
unnecessary. Cf. Mass. R. A. P. 8 (b) (1) (B), as appearing in
481 Mass. 1611 (2019).
10

testimony, we conclude that there was probable cause to support

the clerk-magistrate's issuance of the complaint here.

By statute, criminal harassment is defined as follows:

"willfully and maliciously engag[ing] in a knowing pattern of

conduct or series of acts over a period of time directed at a

specific person, which seriously alarms that person and would

cause a reasonable person to suffer substantial emotional

distress." G. L. c. 265, § 43A (a). Case law has interpreted

the "pattern of conduct or series of acts" language as requiring

three separate incidents of harassing conduct. See Commonwealth

v. Welch, 444 Mass. 80, 89-90 (2005).

On the facts present here, little discussion is necessary

with respect to the existence of probable cause for many of the

required elements of the offense. For example, we agree with

the Commonwealth that SJ's testimony readily established

probable cause that the defendant's conduct was "willful[]" and

"malicious[]," because "[t]he self-evident purpose of [the

defendant's] behavior was to distress [SJ]." The facts also

readily established probable cause that a reasonable person

targeted by the defendant's behavior would be seriously alarmed

and suffer substantial emotional distress.5

5 The Supreme Judicial Court has defined "substantial
emotional distress" as more than "merely trifling or passing"
and "markedly greater than . . . commonly experienced as part of
ordinary living." Commonwealth v. Robinson, 444 Mass. 102, 108
11

As the judge appears to have identified, any doubt about

probable cause emerges because of the complicated interplay

between the criminal harassment statute and protections afforded

to individuals by the First Amendment to the United States

Constitution. See Commonwealth v. Bigelow, 475 Mass. 554, 558-

572 (2016) (interpreting and applying criminal harassment

statute in light of First Amendment concerns). See also O'Brien

v. Borowski, 461 Mass. 415, 421-429 (2012) (same with respect to

parallel civil harassment prevention statute). While G. L.

c. 265, § 43A (a), "is a statute directed at a course of

conduct," the Supreme Judicial Court has held that it

"unquestionably . . . reaches speech," provided that the speech

is constitutionally unprotected. Bigelow, supra at 559.

In our view, at least when SJ's testimony is considered,

there was probable cause that the defendant had engaged in at

least three incidents of criminal harassment, notwithstanding

the judge's concerns about the defendant's rights under the

(2005). The record supports the conclusion that the defendant's
repetitive public online targeting of SJ caused SJ to experience
significant distress, and a fact finder at trial could conclude
that such distress was reasonable. See, e.g., Commonwealth v.
Paton, 63 Mass. App. Ct. 215, 221 (2005) (defendant's
"interference with [victim's] work and normal activities" caused
victim reasonable and substantial emotional distress).
12

First Amendment.6 Notably, some of the defendant's conduct at

issue involved his actions rather than speech, such as standing

in front of SJ's car while photographing it.7 See Commonwealth

v. Robinson, 444 Mass. 102, 108 (2005) (relying on defendant's

use of his car to block victim's access to road as one of

requisite incidents of harassment). And to the extent that the

complaint depends on statements that the defendant directed at

SJ on social media, it is important to view those statements in

the context of the defendant's conduct at the time they were

made, including the defendant's indication of his ubiquitous

physical presence in the town where SJ lived. See Bigelow, 475

Mass. at 567-570 (mailing of disturbing letters to wife of

selectman at her home sufficient to support conviction of

criminal harassment). Based on the content, frequency,

duration, and escalating obsessiveness of the defendant's

6 In light of our conclusion, we need not decide whether the
information within the application for the criminal complaint on
its own established probable cause.

7 The judge concluded that the defendant was not blocking
SJ's exit but "just obnoxiously standing in front of the
vehicle." That assessment amounts to fact finding that is not
appropriate at this preliminary stage of the proceedings. A
fact finder at trial might eventually view the defendant's
standing in front of the car in the same de minimis way that the
motion judge did. For purposes of assessing probable cause,
however, the facts are to be viewed in the light most favorable
to the Commonwealth. See Commonwealth v. Geordi G., 94 Mass.
App. Ct. 82, 85 (2018).
13

statements, a fact finder could view them as objectively

threatening and, as such, unprotected speech.8 See id. In

addition, any false accusations that SJ was a child abuser would

be unprotected by the First Amendment.9 See id. at 566 (noting

that defamatory speech is unprotected). See also Commonwealth

v. Johnson, 470 Mass. 300, 309-310 (2014) (relying on false

accusation of child abuse as one of three acts supporting

conviction of criminal harassment). As the Supreme Judicial

Court has made clear, even "in a prosecution for criminal

harassment under § 43A based solely on a defendant's speech, if

8 This conclusion is not negated by the fact that SJ
admitted on cross-examination that the defendant's postings did
not threaten him with physical harm. For one thing, in light of
the fact that SJ specifically testified that he felt "fear," his
comments about the lack of a physical threat can be viewed
simply as acknowledging the undisputed fact that the defendant
did not make any overt threats of physical violence. See
O'Brien, 461 Mass. at 424 ("true threat does not require an
explicit statement of an intention to harm the victim as long as
circumstances support the victim's fearful or apprehensive
response" [quotation and citation omitted]). For another, a
fact finder might well conclude that someone in SJ's position
might have reason to underplay the extent to which he felt
threatened by the defendant.

9 We acknowledge that the defendant's statement that SJ was
a "child abuser" might be viewed in context not as accusing SJ
of engaging in physical or sexual child abuse in the usual
sense, but as an expression of concern that SJ's relationship
with the child's mother might serve to alienate the defendant's
child from him, which the defendant considered a form of child
abuse. However, as noted, for purposes of determining probable
cause, the judge was required to view the facts in the light
most favorable to the Commonwealth. See Geordi G., 94 Mass.
App. Ct. at 85.
14

it cannot be concluded that, as a matter of law, the speech at

issue is constitutionally protected speech, the question whether

the speech fits within a category of unprotected speech

constitutes a question of fact for the fact finder to decide."

Bigelow, supra at 570-571.

Having concluded that the record before the clerk-

magistrate established probable cause to believe that the

defendant violated the criminal harassment statute, we reverse

the order allowing the defendant's motion to dismiss the

complaint.

So ordered.