Commonwealth v. Christopher Fisichella.

• Court: Massachusetts Appeals Court
• Decided: October 16, 2024
• Docket: 23-P-1073
• Status: Unpublished

Opinion

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-1073

COMMONWEALTH

vs.

CHRISTOPHER FISICHELLA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant on two

complaints charging him with violation of an abuse prevention

order under G. L. c. 209A, § 7. The defendant, representing

himself, appeals from his convictions and from the denial of his

motion to revise or revoke his sentences. 1 He raises numerous

arguments, including that he did not violate the terms of the

abuse prevention order. We affirm.

Background. The victim and the defendant were formerly

married; they separated in 2016 and divorced in 2018. While or

around the time the divorce proceedings were pending, the victim

1The defendant also represented himself at trial after waiving his right to counsel. obtained an abuse prevention order (order) against the

defendant. The order initially issued in the District Court and

was then transferred to the Probate and Family Court in December

2017. Paragraph 2 of the order prohibited the defendant from

contacting the victim but contained a handwritten notation

stating that "[e]mail communication is permitted."

In February 2018 the victim and the defendant appeared with

counsel for an extension hearing in the Probate and Family

Court. At the hearing they informed the judge of their

agreement to extend the order for one year and to modify it per

their written stipulation. The stipulation provided, among

other things, that "[t]he terms of the extended restraining

order shall remain in place . . ., except that paragraph 2 shall

be further modified to allow email communications between the

parties exclusively related to the children." After accepting

the stipulation, the judge extended the order for one year with

the modification that "Paragraph #2 is modified to allow for

email communication regarding the children." After a further

extension and modification (the substance of which is not

material to this appeal), the parties appeared for another

extension hearing in July 2019. The order was then extended to

July 26, 2023, without further modification.

On November 20, 2021, while the order was in effect, the

defendant sent the victim an email message that read, "Happy

2 Birthday, beautiful." The victim replied, "Unwanted, unwelcome,

and clearly contempt." Based on this incident, the first of the

two complaints issued against the defendant on November 23,

2021.

On April 15, 2022, while the first case was pending and the

order was still in effect, the victim and the defendant

exchanged email messages to coordinate picking up their

children. At the end of that exchange, the defendant wrote,

"The children have a wonderful beautiful mother." Based on this

incident, the second complaint issued against the defendant on

April 19, 2022. The cases were then joined for trial on the

defendant's motion.

Discussion. 1. Violation of the order. The defendant

claims that the police committed "entrapment by fraud" by

misstating the terms of the order in the arrest reports attached

to the complaint applications. 2 We construe the defendant's

argument to be that the complaints should have been dismissed

either for lack of probable cause that he violated the order or

for "a violation of the integrity of the proceeding."

Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002).

Construed either way, the argument is without merit.

2 The defendant raised similar claims in a motion to dismiss the first complaint for lack of probable cause, and in an "omnibus motion" in which he argued that the second complaint should also be dismissed for lack of probable cause.

3 "Probable cause requires 'reasonably trustworthy

information . . . sufficient to warrant a prudent [person] in

believing that the defendant had committed or was committing an

offense.'" Commonwealth v. Goldman, 94 Mass. App. Ct. 222, 230

(2018), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163

(1982). Here, each arrest report states that the victim had an

abuse prevention order against the defendant; that the no-

contact provision was modified to allow only for email

communication regarding the children; and that, while the

modified order was in effect, the defendant sent the victim

email messages that did not concern the children. This was

sufficient to establish probable cause that the defendant

violated G. L. c. 209A, § 7.

The defendant has also not shown that the police violated

the integrity of the proceeding. We are unpersuaded by his

assertion that the arrest reports misstated the terms of the

order. A copy of the order was attached to each arrest report,

and the reporting officers could reasonably have construed the

no-contact provision, as modified and in effect when the

defendant sent his email messages, to allow only for email

communication regarding the children. The defendant has thus

failed to demonstrate any police misconduct, let alone egregious

misconduct warranting dismissal of the complaints. See

Commonwealth v. Gardner, 467 Mass. 363, 368 (2014).

4 To the extent the defendant challenges the sufficiency of

the evidence that he violated the order, that argument fails for

similar reasons. The jury could reasonably have construed the

modification of the order as limiting the scope of the

defendant's permitted contact with the victim to email

communication regarding the children. Indeed, that is the most

reasonable way to interpret the modification, as a contrary

interpretation would render it meaningless. The evidence was

thus sufficient to show that the defendant violated the order by

sending the victim email messages that did not concern the

children. For the same reason, reasonable jurors could have

found that the defendant had fair notice of what conduct was

prohibited by the order, to the extent the defendant argues

otherwise. See Commonwealth v. Gordon, 407 Mass. 340, 348 n.3

(1990). This is especially so where the defendant agreed in the

stipulation -- which he signed and which the Probate and Family

Court judge accepted at the extension hearing -- that

paragraph 2 would be "modified to allow email communications

between the parties exclusively related to the children." 3

3 We also reject the defendant's argument that the jury's verdict violated the prohibition against ex post facto laws, which "is directed against legislative action only and does not reach erroneous or inconsistent decisions by the courts." Stokes v. Commonwealth, 368 Mass. 754, 772 (1975), quoting Frank v. Mangum, 237 U.S. 309, 344 (1915).

5 2. Remaining arguments. We briefly address the

defendant's remaining arguments, beginning with his assertion

that the trial judge erred by not providing "case law" to the

jury. It appears that the defendant is challenging the judge's

denial of his request to include excerpts from case law in the

jury charge or to provide the jury with copies of the cases.

"Judges have broad discretion in framing jury instructions,

including determining the appropriate degree of elaboration."

Commonwealth v. Toolan, 490 Mass. 698, 708 (2022). In denying

the defendant's request, the judge here acted well within his

broad discretion. 4

The defendant next contends that the trial judge erred by

admitting the parties' stipulation in evidence because the

stipulation was not incorporated into the order. We take the

defendant to be arguing that the stipulation was therefore not

relevant, but he fails to mention that whether the stipulation

was incorporated into the order was a contested issue at trial.

Furthermore, the stipulation was relevant to whether the

defendant had fair notice of the conduct prohibited by the

order. We discern no abuse of discretion. See Commonwealth v.

4 The judge likewise did not abuse his discretion by declining to provide case law in response to a jury question. To the extent the defendant challenges the judge's response to the jury question on some other ground, any such argument is waived for lack of adequate development. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019).

6 Welch, 487 Mass. 425, 440 (2021) (evidentiary rulings entrusted

to judge's discretion).

The defendant also challenges his sentence of one year's

probation, claiming that it constitutes cruel and unusual

punishment. This argument is moot because the defendant has

completed his probation. See Commonwealth v. Padua, 479 Mass.

1004, 1005-1006 (2018). And in any event, the defendant has

failed to demonstrate any underlying error in his sentence.

The defendant's remaining claims -- that he was subjected

to selective prosecution based on his race, and that the trial

judge and the Probate and Family Court judge were biased -- are

devoid of any support in the record and do not rise to the level

of adequate appellate argument. We therefore need not consider

them. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass.

1628 (2019).

Judgments affirmed.

By the Court (Shin, Ditkoff & Brennan, JJ. 5),

Clerk

Entered: October 16, 2024.

5 The panelists are listed in order of seniority.