Opinion
16-P-616
03-17-2017
COMMONWEALTH v. Ailton P. PINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ailton P. Pina, appeals from an order revoking his probation and imposing a sentence of two and one-half years in a house of correction, nine months committed, and the balance suspended for two years. The defendant claims that it was an error for the judge to admit hearsay evidence at his probation revocation hearing because it was not sufficiently reliable. We affirm.
On February 18, 2014, the defendant admitted to sufficient facts on the charge against him, alleging intimidation of a witness. The case was continued without a finding and the defendant was sentenced to probation for one year. On December 15, 2014, the defendant was issued a notice of probation violation alleging several criminal charges, including: threatening to commit a crime, intimidation of a witness, and discharging a firearm within 500 feet of a building. On February 20, 2015, the defendant was found in violation of his probation based on the new charges and the continuance without a finding was vacated.
The defendant was also charged with carrying a firearm without a license, unlawful possession of a firearm and malicious destruction of property.
Discussion . The defendant argues that the judge erred by admitting in evidence the victim's grand jury testimony and other hearsay evidence that was not substantially reliable. We disagree.
When "hearsay is the only evidence of the [probation] violation, as here, it must be substantially reliable." Commonwealth v. Patton , 458 Mass. 119, 132 (2010). In determining reliability of hearsay evidence at a probation revocation hearing, the judge should consider: "(1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the probationer; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness." Id . at 132-133. However, the evidence need not satisfy all five criteria to be sufficiently reliable. Id . at 133.
The defendant takes issue with the Commonwealth's introduction of the victim's grand jury testimony at his probation revocation hearing. The victim's testimony consisted of statements that the defendant threatened to hurt her if she did not retrieve his iPads or, in the alternative, give him $200 for the iPads.
The judge found that this testimony was substantially reliable because the victim's statements were made "under oath" and suggested that she had "personal knowledge." The judge also found that good cause existed for the victim's absence at the probation revocation hearing and that she "could not appear personally because of ‘threats/intimidation by others.’ " Contrast Commonwealth v. Podoprigora , 48 Mass. App. Ct. 136, 138 (1999), citing Commonwealth v. Calvo , 41 Mass. App Ct. 903, 904 (1996), where "we decided that sworn statements by witnesses with personal knowledge were substantially reliable for probation revocation purposes". See also Commonwealth v. Hill , 52 Mass. App. Ct. 147, 152-153 (2001). Further, the details of the victim's grand jury testimony were consistent with the statements that she made to Officer Jordan Ferreira, Detective Paul Fonseca, and assistant district attorney (ADA) John Hendrie. See id . at 153 (grand jury testimony properly admitted where corroborated by another witness). Thus, the judge properly admitted the victim's grand jury testimony.
The judge's findings were supported by the victim's grand jury testimony and testimony from assistant district attorney Hendrie stating that the victim was in fear for her life because friends of the defendant threatened the victim that, if she did not drop the charges against the defendant, she "would end up being dead."
The defendant argues that the hearsay evidence was not substantially reliable because of the ShotSpotter's failure to report a gunshot and the change in direction of the bullet hole observed in the floor of the victim's apartment. However, "[i]t is the exclusive province of the hearing judge to assess the weight of the evidence." Commonwealth v. Bukin , 467 Mass. 516, 521 (2014).
A ShotSpotter is an automated acoustic device that is designed to detect and locate gunshots in urban areas.
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At the hearing, Detective Fonseca testified that he was aware of prior instances where the police had confirmed that gunshots were fired, but a ShotSpotter had not shown such indication. Also despite the defendant's contentions, the change in the bullet hole's path and Detective Fonseca's inability to locate any projectile in the victim's floor does not necessarily contradict the evidence presented at the hearing. The judge found that in light of the victim's grand jury testimony and the testimony of Officer Ferreira, ADA Hendrie, and Detective Fonseca, the defendant committed threats and violated the terms of his probation based on this new offense. Indeed, the presence of the bullet hole corroborated the hearsay evidence presented at the hearing. The fact that a bullet was shot into the victim's floor was evidence of the defendant's threat to hurt her if she did not comply with his demands.
Therefore, "[w]e discern no abuse of discretion in the judge's determination that a probation violation had occurred." Ibid . See Hill , supra .
Order revoking probation and imposing sentence affirmed.