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
24-P-33
COMMONWEALTH
vs.
CHRISTOPHER FISICHELLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After an altercation with his wife in 2016, the defendant,
Christopher Fisichella, was charged in the District Court with
assault and battery on a family or household member (ABFHM) and
vandalizing property. On June 28, 2017, he admitted to
sufficient facts for guilty findings on the charge of ABFHM, and
on a reduced charge of malicious destruction of property over
$250; the judge continued both charges without a finding for a
one-year period.
Between 2017 and 2019, the defendant filed three
unsuccessful motions for a new trial. He appealed from the
denial of the third motion and, in an unpublished decision
issued under our rule 23.0, a panel of this court affirmed the judge's order. See Commonwealth v. Fisichella, 98 Mass. App.
Ct. 1113 (2020). On September 18, 2023, the defendant filed a
fourth motion for new trial, accompanied by a motion for
discovery. When the judge1 denied those motions after a hearing,
the defendant filed this appeal. Having carefully considered
the defendant's arguments, we affirm.
Discussion. 1. Motion for new trial. A motion to
withdraw an admission to sufficient facts is considered a motion
for a new trial under Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2001). See Commonwealth v. Scott, 467 Mass.
336, 337 n.1, 344 (2014). "A strong policy of finality limits
the grant of new trial motions to exceptional situations, and
such motions should not be allowed lightly." Commonwealth v.
Gordon, 82 Mass. App. Ct. 389, 394 (2012). A judge may deny a
motion for a new trial "on the papers, without hearing, where no
substantial issue is raised." Id. Because the motion judge in
the present case did not preside over the plea hearing, our
review is de novo. See Commonwealth v. Cousin, 478 Mass. 608,
615 (2018). Parsing the defendant's brief and his citations to
the record carefully, we discern neither an abuse of discretion
1 The same judge had decided each of the prior motions for a new trial in this case.
2 nor an error of law in the judge's ruling, and so we affirm.
See Scott, supra at 344.
a. Previously-litigated claims. The defendant's
contentions that he is entitled to withdraw his plea because (1)
the charged conduct was legally justified as actions taken in
defense of third parties (here, his children); (2) he was
coerced into tendering or accepting the plea; and (3) the
complaining witness lied about certain details of the
defendant's conduct at the time of the crimes, were all
litigated in his prior appeal. We decline to reconsider those
issues. See Commonwealth v. Watkins (No. 1), 486 Mass. 801, 806
(2021) (although "emphasis . . . in [defendant's successive]
motions [for new trial] differ[ed] slightly," where "main thrust
of both" was similar, direct estoppel precluded defendant from
relitigating those issues). Cf. Commonwealth v. Pfeiffer, 492
Mass. 440, 447-448 (2023).
b. Plea colloquy. The record does not support the
defendant's contention that "the trial day transcript . . .
shows there was no colloquy" at the time of his plea. The
docket reflects that there was a colloquy and, although the
recording of the hearing appears to have been paused for a
period between the judge's rejection of the defendant's capped
plea tender and the clerk's recitation of the plea's
3 disposition, the transcript does not foreclose the existence of
an unrecorded colloquy.2 Moreover, the record reflects that at
different times in the history of this case -- including in the
course of arguing one of his motions for new trial and in a
later written filing -- the defendant recalled and related
details of that colloquy.
The record is insufficient to allow us to analyze the
defendant's related claim that the judge's colloquy failed to
ensure that the defendant's plea was made voluntarily and
intelligently. See Commonwealth v. Armstrong, 88 Mass. App. Ct.
756, 758 (2015). The recording of the plea hearing was
incomplete and, although the defendant could have sought to
reconstruct the record, he did not do so. See Mass. R. A. P.
8 (C) (3) (c), as appearing in 481 Mass. 1611 (2019);
Commonwealth v. Woody, 429 Mass. 95, 97 (1999) (failure of
appellant to provide appellate court with adequate record may
preclude review). Absent an adequate record, the defendant has
failed to demonstrate any deficiency in the plea colloquy
entitling him to a new trial. See Commonwealth v. Harris, 376
Mass. 74, 78-79 (1978) (appellant must attempt to reconstruct
2 That the docket reflects no objection or other reference to the judge's failure to conduct a colloquy, and the defendant failed to raise the lack of any colloquy in his earlier motions for a new trial, add support to our view.
4 record); Roby v. Superintendent, Mass. Correctional Inst.,
Concord, 94 Mass. App. Ct. 410, 412 (2018) (generally, failure
to provide adequate record is "fatal" to appeal).
c. Ineffective assistance. On appeal, the defendant also
argues that his counsel was ineffective because he failed to
move to dismiss the charges based on lack of prosecution, and
failed to move to suppress evidence. When the basis for a
motion for a new trial is a claim of ineffective assistance of
counsel, "the defendant must show that the behavior of counsel
fell measurably below that of an ordinary, fallible lawyer and
that such failing 'likely deprived the defendant of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974). Because this argument
could have been raised in the defendant's earlier appeal but was
not, to the extent we discern abuse of discretion or another
error, we ask only whether the error created a substantial risk
of a miscarriage of justice. See Commonwealth v. Brescia, 471
Mass. 381, 389 (2015).
The defendant has not explained how his counsel's
performance fell below accepted standards in failing to file
either of the motions on which he focuses. As to the motion to
dismiss, although the Commonwealth did move on June 26, 2017, to
5 continue the June 28, 2017, trial date, that motion was denied.
The trial date was also less than one year from the date of the
defendant's arraignment. See Mass. R. Crim. P. 36 (b) (1) (C),
378 Mass. 909 (1979).
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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
24-P-33
COMMONWEALTH
vs.
CHRISTOPHER FISICHELLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After an altercation with his wife in 2016, the defendant,
Christopher Fisichella, was charged in the District Court with
assault and battery on a family or household member (ABFHM) and
vandalizing property. On June 28, 2017, he admitted to
sufficient facts for guilty findings on the charge of ABFHM, and
on a reduced charge of malicious destruction of property over
$250; the judge continued both charges without a finding for a
one-year period.
Between 2017 and 2019, the defendant filed three
unsuccessful motions for a new trial. He appealed from the
denial of the third motion and, in an unpublished decision
issued under our rule 23.0, a panel of this court affirmed the judge's order. See Commonwealth v. Fisichella, 98 Mass. App.
Ct. 1113 (2020). On September 18, 2023, the defendant filed a
fourth motion for new trial, accompanied by a motion for
discovery. When the judge1 denied those motions after a hearing,
the defendant filed this appeal. Having carefully considered
the defendant's arguments, we affirm.
Discussion. 1. Motion for new trial. A motion to
withdraw an admission to sufficient facts is considered a motion
for a new trial under Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2001). See Commonwealth v. Scott, 467 Mass.
336, 337 n.1, 344 (2014). "A strong policy of finality limits
the grant of new trial motions to exceptional situations, and
such motions should not be allowed lightly." Commonwealth v.
Gordon, 82 Mass. App. Ct. 389, 394 (2012). A judge may deny a
motion for a new trial "on the papers, without hearing, where no
substantial issue is raised." Id. Because the motion judge in
the present case did not preside over the plea hearing, our
review is de novo. See Commonwealth v. Cousin, 478 Mass. 608,
615 (2018). Parsing the defendant's brief and his citations to
the record carefully, we discern neither an abuse of discretion
1 The same judge had decided each of the prior motions for a new trial in this case.
2 nor an error of law in the judge's ruling, and so we affirm.
See Scott, supra at 344.
a. Previously-litigated claims. The defendant's
contentions that he is entitled to withdraw his plea because (1)
the charged conduct was legally justified as actions taken in
defense of third parties (here, his children); (2) he was
coerced into tendering or accepting the plea; and (3) the
complaining witness lied about certain details of the
defendant's conduct at the time of the crimes, were all
litigated in his prior appeal. We decline to reconsider those
issues. See Commonwealth v. Watkins (No. 1), 486 Mass. 801, 806
(2021) (although "emphasis . . . in [defendant's successive]
motions [for new trial] differ[ed] slightly," where "main thrust
of both" was similar, direct estoppel precluded defendant from
relitigating those issues). Cf. Commonwealth v. Pfeiffer, 492
Mass. 440, 447-448 (2023).
b. Plea colloquy. The record does not support the
defendant's contention that "the trial day transcript . . .
shows there was no colloquy" at the time of his plea. The
docket reflects that there was a colloquy and, although the
recording of the hearing appears to have been paused for a
period between the judge's rejection of the defendant's capped
plea tender and the clerk's recitation of the plea's
3 disposition, the transcript does not foreclose the existence of
an unrecorded colloquy.2 Moreover, the record reflects that at
different times in the history of this case -- including in the
course of arguing one of his motions for new trial and in a
later written filing -- the defendant recalled and related
details of that colloquy.
The record is insufficient to allow us to analyze the
defendant's related claim that the judge's colloquy failed to
ensure that the defendant's plea was made voluntarily and
intelligently. See Commonwealth v. Armstrong, 88 Mass. App. Ct.
756, 758 (2015). The recording of the plea hearing was
incomplete and, although the defendant could have sought to
reconstruct the record, he did not do so. See Mass. R. A. P.
8 (C) (3) (c), as appearing in 481 Mass. 1611 (2019);
Commonwealth v. Woody, 429 Mass. 95, 97 (1999) (failure of
appellant to provide appellate court with adequate record may
preclude review). Absent an adequate record, the defendant has
failed to demonstrate any deficiency in the plea colloquy
entitling him to a new trial. See Commonwealth v. Harris, 376
Mass. 74, 78-79 (1978) (appellant must attempt to reconstruct
2 That the docket reflects no objection or other reference to the judge's failure to conduct a colloquy, and the defendant failed to raise the lack of any colloquy in his earlier motions for a new trial, add support to our view.
4 record); Roby v. Superintendent, Mass. Correctional Inst.,
Concord, 94 Mass. App. Ct. 410, 412 (2018) (generally, failure
to provide adequate record is "fatal" to appeal).
c. Ineffective assistance. On appeal, the defendant also
argues that his counsel was ineffective because he failed to
move to dismiss the charges based on lack of prosecution, and
failed to move to suppress evidence. When the basis for a
motion for a new trial is a claim of ineffective assistance of
counsel, "the defendant must show that the behavior of counsel
fell measurably below that of an ordinary, fallible lawyer and
that such failing 'likely deprived the defendant of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974). Because this argument
could have been raised in the defendant's earlier appeal but was
not, to the extent we discern abuse of discretion or another
error, we ask only whether the error created a substantial risk
of a miscarriage of justice. See Commonwealth v. Brescia, 471
Mass. 381, 389 (2015).
The defendant has not explained how his counsel's
performance fell below accepted standards in failing to file
either of the motions on which he focuses. As to the motion to
dismiss, although the Commonwealth did move on June 26, 2017, to
5 continue the June 28, 2017, trial date, that motion was denied.
The trial date was also less than one year from the date of the
defendant's arraignment. See Mass. R. Crim. P. 36 (b) (1) (C),
378 Mass. 909 (1979). Where there was thus no delay occasioned
by the continuance request, we discern no basis for a speedy
trial motion based on that request, and no deviation from
accepted standards of practice in counsel's failure to bring
such a motion. See Commonwealth v. Conceicao, 388 Mass. 255,
264 (1983) ("It is not ineffective assistance of counsel when
trial counsel declines to file a motion with a minimal chance of
success").
As to the motion to suppress, the defendant provides no
explanation as to what evidence was subject to suppression, or
what such a motion might have accomplished. See Conceicao, 388
Mass. at 264. We therefore discern no ineffective assistance
based on counsel's failure to file or argue either of these
motions.
d. Constitutional claims. The defendant's claim that the
denial of his motion for a new trial deprived him of his right
to a jury under the United States Constitution or the
Massachusetts Declaration of Rights does not rise to the level
of appellate argument, and we do not consider it. See Mass.
R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
6 2. Motion for discovery. The defendant's fourth motion
for a new trial was accompanied by a motion for discovery of his
children's therapy records dated January 2018 and later to
substantiate his claim that, in touching the victim and damaging
her cell phone, he was acting in defense of his children. "The
purpose of postconviction discovery is to allow a defendant to
gather evidence to support an apparently meritorious claim . . .
[where] the evidence that can be adduced to support the claim is
unknown to the court (quotation and citation omitted)."
Commonwealth v. Daniels, 445 Mass. 392, 406–407 (2005). "In
order to prevail on a posttrial discovery motion, a defendant
must demonstrate that it is reasonably likely that such
discovery will lead to evidence possibly warranting a new trial
. . . [and] must make a prima facie showing that the evidence
sought would have materially benefited the defense."
Commonwealth v. Camacho, 472 Mass. 587, 598 (2015). We review a
judge's ruling on a motion for postconviction discovery for an
abuse of discretion. See id.
Even assuming without deciding that the records at issue
support the defendant's claim that he acted in defense of the
children when he took the victim's cell phone from her and broke
it, he has not shown that the evidence would likely result in a
new trial. The evidence postdated the defendant's plea and did
7 not provide any additional weight to the defendant's claim that
he was acting in the children's defense when he committed the
ABFHM and damaged the cell phone. In this circumstance, we
discern no abuse of the judge's discretion in his decision to
deny the motion for postconviction discovery.
Conclusion.3 The orders entered November 1, 2023, denying
the defendant's motions for a new trial and for postconviction
discovery are affirmed.
So ordered.
By the Court (Rubin, Hand & Smyth, JJ.4),
Clerk
Entered: June 11, 2025.
3 Given our conclusion that the defendant's motion for a new trial was properly denied, we do not address the defendant's contention that he "rescinded [the] waiver of rights" he made as a part of his plea.
4 The panelists are listed in order of seniority.