Commonwealth v. Peter J. Chongarlides, Sr.

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

21-P-1032

COMMONWEALTH

vs.

PETER J. CHONGARLIDES, SR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a judge of the

District Court revoking his probation. He asserts that the

judge abused his discretion when he relied on hearsay statements

to conclude that the defendant violated his probation by

committing new offenses and erred by failing to make written

findings that the hearsay was substantially reliable. We

affirm.

Background. On June 6, 2019, the defendant pleaded guilty

in the District Court to vandalizing property in violation of

G. L. c. 265, § 126A. A judge sentenced him to two years in a

house of correction, with nine months to serve and the balance

suspended for a term of three years. While he was on probation,

the defendant was charged with new offenses stemming from three

instances of abuse of his girlfriend (victim). The defendant
received proper notice of the violations and a final surrender

hearing was scheduled.

At the hearing, the judge heard testimony from a police

officer who responded to a call, on July 13, 2020, and received

a report by the victim that the defendant had assaulted her.

The officer testified not only to the victim's statements, but

to his own observations of her "distressed" and "nervous"

demeanor, and the defendant's raised voice when speaking with

the victim. The judge also received several documentary

exhibits, including police narratives and medical records

associated with the reported abuse of the victim. The first

police report described an incident, on November 4, 2020, in

which the victim reported that the defendant approached the

victim with a knife, called her names, pushed her against a

truck, scratched the truck with the knife, followed her when she

attempted to walk away, knocked her down, and kicked her in the

face, stomach, and side as she lay on the ground. The second

report detailed an assault about two weeks later, on November

17, 2020, where the victim reported that the defendant had

punched the victim in the face repeatedly until she fell to the

ground then stomped on her chest and refused to let her leave

the home. The victim did not testify at the hearing.

At the conclusion of the hearing, the judge made oral

findings on the record as follows:

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"So, I've looked at the police reports. I've heard the
testimony of the officer. I -- The police reports from the
incidences (sic) of November 4th and November 17. They are
hearsay. I find them to be based on personal knowledge and
direct observation. They involve observations reported
close in time. They're corroborated. They're provided
under circumstances that would support the veracity of the
source. They're factually detailed, internally consistent,
and I note that, at least for the November 17 incident,
[the victim] states that she was punched in the face and
Mr. Chongarlides . . . stomped on her chest. She grabbed
her left side when the police was (sic) talking to her,
etcetera.

"When I look at the medical reports, [the victim], after
having been assaulted last night by a known assailant, her
diagnosis and injures are multiple facial fractures,
multiple rib fractures. I find that to be corroborating
evidence. I heard from the officer as to the other
incident.

"Based upon the totality of the evidence before me, I find
Mr. Chongarlides in violation of probation."

The judge did not make written findings.

Discussion. 1. Hearsay. The defendant argues that the

judge violated his due process rights by improperly relying on

unreliable hearsay statements of the victim offered through the

testimony of one police officer, incident reports of two other

officers, and medical records.1 He contends that without these

1 Citing Commonwealth v. Durling, 407 Mass. 108, 112, 117-118
(1990), the defendant also argues that the Commonwealth failed
to set forth "good cause" for the absence at the probation
violation hearing of the victim and the officers who authored
the police reports that were taken as evidence. There was also
considerable discussion at the hearing between the judge and the
parties regarding the availability of the witnesses and efforts
by the Commonwealth to secure their presence. We take this
opportunity to reemphasize that "if reliable hearsay is
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hearsay statements there was an inadequate basis for the judge

to find that he violated his probation.

"In probation violation proceedings, the Commonwealth bears

the burden of proving by a preponderance of the evidence that

the probationer violated the terms and conditions of [his]

probation." Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct.

44, 47 (2018). At a probation violation hearing, a judge may

rely on hearsay evidence that has "substantial indicia of

reliability." Commonwealth v. Ogarro, 95 Mass. App. Ct. 662,

668 (2019). In assessing whether hearsay is substantially

reliable, the judge may consider:

"(1) whether the evidence is based on personal knowledge or
direct observation; (2) whether the evidence, if based on
direct observation, was recorded close in time to the
events in question; (3) the level of factual detail; (4)
whether the statements are internally consistent; (5)
whether the evidence is corroborated by information from
other sources; (6) whether the declarant was disinterested
when the statements were made; and (7) whether the
statements were made under circumstances that support their
veracity." Id., quoting Commonwealth v. Hartfield, 474
Mass. 474, 484 (2016).

See Commonwealth v. Costa, 490 Mass. 118, 124-125 (2022).

"There is no requirement that hearsay satisfy all the above

criteria to be trustworthy and reliable." Commonwealth v.

Patton, 458 Mass. 119, 133 (2010). We review the judge's

assessment of the reliability of that evidence for an abuse of

presented, the good cause requirement is satisfied."
Commonwealth v. Negron, 441 Mass. 685, 691 (2004).
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discretion. See Commonwealth v. Jarrett, 491 Mass. 437, 445

(2023), citing L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

Here, the judge did not abuse his discretion by concluding

the hearsay evidence was substantially reliable. Both police

reports contained detailed accounts by the victim of the events

she described. The November 4th report was taken within one

hour of the assault. The reporting officer observed damage to a

truck consistent with the victim's account that the defendant

had scratched it with his knife and injuries to the victim's

face that corroborated her statement that the defendant had

kicked her. The November 17th incident was reported by the

victim the following day when police were called to the hospital

where she was being treated. The officer saw that the victim's

eye was swollen almost shut, her forehead was cut and bruised,

and her lips were swollen. Moreover, during their conversation

when the victim coughed, the officer saw the victim "shriek[] in

pain" and grab her side, consistent with her report of having

been stomped by the defendant. Finally, the victim's hearsay

statements were further corroborated by medical records that the

judge found showed she had facial and rib fractures.

2. Judge's findings. The defendant also contends that the

judge's failure to make written findings that the hearsay was

substantially reliable was error. We disagree.

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"[A] judge who relies on hearsay evidence in finding a

violation of probation . . . should set forth in writing or on

the record why [the judge] found the hearsay evidence to be

reliable" (quotation and citation omitted). Commonwealth v.

Grant G., 96 Mass. App. Ct. 721, 725 (2019). Here, the judge

set forth orally on the record his reasons for finding the

hearsay substantially reliable. He cited six of the seven

factors discussed in Hartfield, supra, in support of his

conclusion. Although written findings would have been

preferable, they are not mandated. Thus, there was no error.

Order revoking probation
affirmed.

By the Court (Meade, Blake &
Brennan, JJ.2),

Clerk

Entered: June 16, 2023.

2 The panelists are listed in order of seniority.
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