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-153
COMMONWEALTH
vs.
FRANCISCO SORRENTINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Francisco
Sorrentino, was convicted of rape, in violation of G. L. c. 265,
§ 22 (b). On appeal, the defendant argues that the judge erred
in the admission of first complaint testimony, which consisted
of the victim's disclosure to her coworker that the defendant
sexually assaulted her, and in the admission of portions of the
victim's testimony that related to the defendant's prior
acquittals. We affirm.
Background. On August 11, 2019, a grand jury indicted the
defendant for rape, G. L. c. 265, § 22 (b), strangulation by
placing his hands around the victim's throat, G. L. c. 265,
§ 15D (b), and assault and battery on a family or household member by striking the victim's face, G. L. c. 265, § 13M.
After a jury trial, the defendant was found not guilty of
strangulation and assault and battery on a family or household
member. The jury could not reach a verdict on the count of
rape, and the judge declared a mistrial.
The same judge conducted the second jury trial. The
defendant first sought to dismiss the rape indictment, arguing
that the Commonwealth could not prove the force element of rape
since he had been acquitted of strangulation and assault and
battery. The defendant then moved to preclude the Commonwealth
from introducing evidence of the acquitted offenses and the
conduct relied on to support them, on collateral estoppel
grounds. The judge denied the first motion but allowed the
second in part, excluding any evidence of the "'open hand slap'
that allegedly occurred in the kitchen" and excluding evidence
of the strangulation "only to the extent that the defendant
'applied pressure' to the alleged victim's neck." At trial, the
victim testified that before the defendant raped her, he pulled
her hair, threw her on the bed, and put his hands on her neck.1
On September 28, 2021, the jury found the defendant guilty of
rape.
The defendant objected to this testimony and requested a 1
limiting instruction. The judge denied the request.
2 Discussion. 1. First complaint doctrine. The defendant
argues that it was prejudicial error for the judge to admit the
testimony of the victim's coworker who was the person the victim
first told of the sexual assault. Because this was the first
time the victim told another person that she was sexually
assaulted, the testimony was admissible under the "first
complaint doctrine." See Commonwealth v. King, 445 Mass. 217,
244 (2005), cert. denied, 546 U.S. 1216 (2006). Under this
doctrine, a victim of a sexual assault and the first person the
victim told of the sexual assault may testify to the
circumstances of the victim's first disclosure as part of the
Commonwealth's case-in-chief. See Id. at 242-245. Such
circumstances include "the events or conversations that
culminated in the complaint; the timing of the complaint; and
other relevant conditions that might help a jury assess the
veracity of the complainant's allegations or assess the specific
defense theories as to why the complainant is making a false
allegation." Id. at 246.
The defendant argues that the first complaint doctrine, as
applied to him, violated his due process rights. He asks us, in
effect, to overrule the Supreme Judicial Court's decision in
3 King.2 The substance of the defendant's argument is that
"significant changes in public attitude" since King have
rendered the first complaint doctrine obsolete. The defendant
contends that the societal shifts of the "#MeToo" movement and
"fourth-wave" feminism have affected evidentiary rulings and
juror decision-making such that jurors now believe victims as a
matter of course. Absent from the defendant's argument,
however, is "any authority for this court's power to overrule a
decision of the Supreme Judicial Court or to decline to follow
the holding of that court's opinions." Commonwealth v. Dube, 59
Mass. App. Ct. 476, 485 (2003). "[F]rom the very earliest
decisions we issued and continuing to this day, we have
uniformly and unequivocally held we have no power to alter,
overrule or decline to follow the holding of cases the Supreme
Judicial Court has decided."3 Id.
2 The defendant did not seek direct appellate review. See Mass. R. A. P. 11, as appearing in 481 Mass. 1620 (2019).
3 Even if our review were not constrained by Supreme Judicial Court precedent, we would not be inclined to grant the defendant the relief he seeks. In support of his claim, the defendant cites to a Louisiana Law Review article that merely raises the question he claims it answers. Further, the defendant concedes that "scholars have not yet come to a consensus" on the issue. The other three sources he cites in support of his argument -- that "[v]ictims are more likely to report sex crimes" and "are more likely to identify unwanted sexual encounters as sexual assault" because of these movements -- are also unpersuasive. By no stretch of the imagination do
4 2. Admissibility of victim's testimony. Next, the
defendant argues that the judge erred in allowing the victim to
testify about the defendant's violent behavior prior to the rape
because that testimony was barred by the doctrine of collateral
estoppel. We review for an abuse of discretion. See
Commonwealth v. Spencer, 465 Mass. 32, 48 (2013).
Collateral estoppel requires three elements: "(1) a common
factual issue; (2) a prior determination of that issue in
litigation between the same parties; and (3) a showing that the
determination was in favor of the party seeking to raise the
estoppel bar." Commonwealth v. Lopez, 383 Mass. 497, 499
(1981). "The doctrine of collateral estoppel will preclude
. . . the introduction or argument of certain facts, only if the
jury could not have based their verdict rationally on an issue
other than the one the defendant seeks to foreclose" (citation
omitted). Commonwealth v. Dorazio, 472 Mass. 535, 544 (2015).
The defendant claims that the facts testified to by the
victim regarding the defendant placing his hands on her neck
were already determined in his favor during the first trial. To
the contrary, the jury in the defendant's first trial returned
two general not guilty verdicts, which could have rationally
these materials provide sufficient support for the assertion that the first complaint doctrine is no longer necessary.
Free access — add to your briefcase to read the full text and ask questions with AI
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-153
COMMONWEALTH
vs.
FRANCISCO SORRENTINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Francisco
Sorrentino, was convicted of rape, in violation of G. L. c. 265,
§ 22 (b). On appeal, the defendant argues that the judge erred
in the admission of first complaint testimony, which consisted
of the victim's disclosure to her coworker that the defendant
sexually assaulted her, and in the admission of portions of the
victim's testimony that related to the defendant's prior
acquittals. We affirm.
Background. On August 11, 2019, a grand jury indicted the
defendant for rape, G. L. c. 265, § 22 (b), strangulation by
placing his hands around the victim's throat, G. L. c. 265,
§ 15D (b), and assault and battery on a family or household member by striking the victim's face, G. L. c. 265, § 13M.
After a jury trial, the defendant was found not guilty of
strangulation and assault and battery on a family or household
member. The jury could not reach a verdict on the count of
rape, and the judge declared a mistrial.
The same judge conducted the second jury trial. The
defendant first sought to dismiss the rape indictment, arguing
that the Commonwealth could not prove the force element of rape
since he had been acquitted of strangulation and assault and
battery. The defendant then moved to preclude the Commonwealth
from introducing evidence of the acquitted offenses and the
conduct relied on to support them, on collateral estoppel
grounds. The judge denied the first motion but allowed the
second in part, excluding any evidence of the "'open hand slap'
that allegedly occurred in the kitchen" and excluding evidence
of the strangulation "only to the extent that the defendant
'applied pressure' to the alleged victim's neck." At trial, the
victim testified that before the defendant raped her, he pulled
her hair, threw her on the bed, and put his hands on her neck.1
On September 28, 2021, the jury found the defendant guilty of
rape.
The defendant objected to this testimony and requested a 1
limiting instruction. The judge denied the request.
2 Discussion. 1. First complaint doctrine. The defendant
argues that it was prejudicial error for the judge to admit the
testimony of the victim's coworker who was the person the victim
first told of the sexual assault. Because this was the first
time the victim told another person that she was sexually
assaulted, the testimony was admissible under the "first
complaint doctrine." See Commonwealth v. King, 445 Mass. 217,
244 (2005), cert. denied, 546 U.S. 1216 (2006). Under this
doctrine, a victim of a sexual assault and the first person the
victim told of the sexual assault may testify to the
circumstances of the victim's first disclosure as part of the
Commonwealth's case-in-chief. See Id. at 242-245. Such
circumstances include "the events or conversations that
culminated in the complaint; the timing of the complaint; and
other relevant conditions that might help a jury assess the
veracity of the complainant's allegations or assess the specific
defense theories as to why the complainant is making a false
allegation." Id. at 246.
The defendant argues that the first complaint doctrine, as
applied to him, violated his due process rights. He asks us, in
effect, to overrule the Supreme Judicial Court's decision in
3 King.2 The substance of the defendant's argument is that
"significant changes in public attitude" since King have
rendered the first complaint doctrine obsolete. The defendant
contends that the societal shifts of the "#MeToo" movement and
"fourth-wave" feminism have affected evidentiary rulings and
juror decision-making such that jurors now believe victims as a
matter of course. Absent from the defendant's argument,
however, is "any authority for this court's power to overrule a
decision of the Supreme Judicial Court or to decline to follow
the holding of that court's opinions." Commonwealth v. Dube, 59
Mass. App. Ct. 476, 485 (2003). "[F]rom the very earliest
decisions we issued and continuing to this day, we have
uniformly and unequivocally held we have no power to alter,
overrule or decline to follow the holding of cases the Supreme
Judicial Court has decided."3 Id.
2 The defendant did not seek direct appellate review. See Mass. R. A. P. 11, as appearing in 481 Mass. 1620 (2019).
3 Even if our review were not constrained by Supreme Judicial Court precedent, we would not be inclined to grant the defendant the relief he seeks. In support of his claim, the defendant cites to a Louisiana Law Review article that merely raises the question he claims it answers. Further, the defendant concedes that "scholars have not yet come to a consensus" on the issue. The other three sources he cites in support of his argument -- that "[v]ictims are more likely to report sex crimes" and "are more likely to identify unwanted sexual encounters as sexual assault" because of these movements -- are also unpersuasive. By no stretch of the imagination do
4 2. Admissibility of victim's testimony. Next, the
defendant argues that the judge erred in allowing the victim to
testify about the defendant's violent behavior prior to the rape
because that testimony was barred by the doctrine of collateral
estoppel. We review for an abuse of discretion. See
Commonwealth v. Spencer, 465 Mass. 32, 48 (2013).
Collateral estoppel requires three elements: "(1) a common
factual issue; (2) a prior determination of that issue in
litigation between the same parties; and (3) a showing that the
determination was in favor of the party seeking to raise the
estoppel bar." Commonwealth v. Lopez, 383 Mass. 497, 499
(1981). "The doctrine of collateral estoppel will preclude
. . . the introduction or argument of certain facts, only if the
jury could not have based their verdict rationally on an issue
other than the one the defendant seeks to foreclose" (citation
omitted). Commonwealth v. Dorazio, 472 Mass. 535, 544 (2015).
The defendant claims that the facts testified to by the
victim regarding the defendant placing his hands on her neck
were already determined in his favor during the first trial. To
the contrary, the jury in the defendant's first trial returned
two general not guilty verdicts, which could have rationally
these materials provide sufficient support for the assertion that the first complaint doctrine is no longer necessary.
5 resulted from other issues of fact. See Commonwealth v. Benson,
389 Mass. 473, 481 (1983), quoting Commonwealth v. Cerveny, 387
Mass. 280, 285 (1982) ("A finding of not guilty at a criminal
trial can result from any number of factors having nothing to do
with the defendant's actual guilt").
The charge of strangulation requires that "the defendant
(1) intentionally (2) interfered with the normal breathing or
circulation of blood of the victim; and (3) applied substantial
pressure on the throat or neck of the victim." Commonwealth v.
Lahens, 100 Mass. App. Ct. 310, 315 (2021), citing G. L. c. 265,
§ 15D (a). Here, the sum of the disputed testimony was that the
defendant placed his hands on the neck of the victim, which is
not negated by an acquittal on the charge of strangulation.
There are a variety of reasons why the jury could have concluded
that the Commonwealth failed to meet its burden of proof as it
relates to the charge of strangulation. For example, the jury
could have believed that the defendant placed his hands on the
victim's neck but disbelieved that he applied substantial
pressure to the victim's neck or that he interfered with the
victim's normal breathing or blood circulation.
Because the defendant has not shown that there was a prior
determination on the specific factual issue of whether the
defendant placed his hands on the victim's neck, the
6 Commonwealth was not estopped from introducing those facts to
prove the required element of force in the rape charge.4 The
trial judge's admission of the evidence was not in error.
Judgment affirmed.
By the Court (Desmond, Shin & Walsh, JJ.5),
Clerk
Entered: December 10, 2025.
4 To the extent that the defendant argues that any evidence of other assaultive behavior should have been excluded, we note that the conduct that formed the basis of the assault and battery charge -- the "'open hand slap' that allegedly occurred in the kitchen" -- was excluded by the motion judge and was not introduced at the subsequent trial.
5 The panelists are listed in order of seniority.