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
25-P-339
KAREN BALCHUNAS & another1
vs.
THOMAS FARDY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Thomas Fardy, appeals from a Superior Court
jury verdict awarding the plaintiffs, Karen Balchunas and Marisa
Brown, damages for civil assault and battery and intentional
infliction of emotional distress. The defendant argues that the
trial judge abused his discretion by admitting two photographs
and an audio recording into evidence. We affirm.
Background. Balchunas and the defendant lived together as
domestic partners for approximately thirty years. Brown is
Balchunas's adult daughter. On September 9, 2014, the defendant
physically attacked and strangled Balchunas. Two days later,
when the defendant again began behaving aggressively, Balchunas
1 Marisa Brown. called Brown to come to her home. Shortly after Brown arrived,
she saw the defendant "grab[] a full bottle of wine and slam the
fridge." Brown and Balchunas went into an office area at the
back of the house to get away from the defendant. When the
defendant entered the office about ten minutes later, Brown
picked up Balchunas's cell phone, held it up to the defendant,
pushed a button on the side of the phone, and told the defendant
she would call 911 if he did not go back to bed and leave them
alone. The defendant then strangled Brown, putting his hands
around her throat. He also punched Balchunas in the face
multiple times when she tried to intervene. The plaintiffs ran
out of the house and called the police, who arrested the
defendant.2 About three and a half years later, the plaintiffs
discovered that when Brown pushed the button on the side of
Balchunas's cell phone, she accidentally created an audio
recording of the incident.
Discussion. 1. Standard of review. We review a judge's
evidentiary rulings for an abuse of discretion. See Luppold v.
Hanlon, 495 Mass. 148, 154-155 (2025). An abuse of discretion
occurs "where we conclude the judge made a clear error of
judgment in weighing the factors relevant to the decision such
2 The defendant admitted to sufficient facts in the District Court on criminal charges of strangulation, assault and battery on a family or household member, and assault and battery.
2 that the decision falls outside the range of reasonable
alternatives." Id., quoting L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014).
2. Admission of the photographs. The defendant asserts
that the trial judge abused his discretion by admitting
photographs of Balchunas's injuries, because a prior judge
(motion judge) ordered exclusion from trial of any evidence that
had not been produced as of the date of her order, March 14,
2019. We disagree.
About three months after the motion judge's order, in June
2019, Balchunas brought the photographs to her deposition. The
plaintiffs had not provided the photographs to the defendant
prior to the motion judge's order, however, they were utilized
and discussed during Balchunas's deposition testimony. Shortly
before the trial began, the trial judge denied the defendant's
motion in limine to exclude the photographs. They were entered
into evidence during the trial.
A trial judge is free to alter a pretrial ruling in the
exercise of sound judicial discretion. See Commonwealth v.
Gonzalez, 22 Mass. App. Ct. 274, 277 n.5 (1986); see also
Commonwealth v. Gross, 447 Mass. 691, 693 n.2 (2006) (judge
retains authority to reconsider question of fact or law even
once previous judge has decided it). Although a "judge should
hesitate before undoing the work of another judge," see Herbert
3 A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 401
(2003), ultimately it is the trial judge's function as
gatekeeper to determine what evidence fairly can be presented to
the jury. Here, the defendant moved to exclude the photographs
prior to trial and objected when they were offered at trial on
the ground that their admission violated the motion judge's
order. The trial judge denied the pretrial motion and overruled
the defendant's trial objection based on his finding that the
plaintiffs disclosed the photographs by June 2019, about four
years prior to trial. The defendant argues that he lacked
notice that the photographs would be admitted into evidence,
because he relied on the motion judge's order. We agree with
the trial judge's implicit reasoning that there was no prejudice
where the defendant knew about the photographs for at least four
years at the time of trial and therefore had ample time to
prepare for any issues they might present. In any event, the
decision to alter the motion judge's ruling and permit the
photographs to be admitted into evidence at trial was well
within the trial judge's discretion. See Gonzalez, supra.
3. Admission of the recording. The defendant also argues
that the trial judge abused his discretion in admitting the
audio recording and committed criminal violations of G. L.
c. 272, § 99, the statute proscribing wiretapping (wiretap
4 statute), by playing the recording in the courtroom. We
disagree.
The defendant does not challenge the plaintiffs'
representation that Brown created the recording accidentally.
However, he contends that an accidental recording can still be a
secret recording, and therefore an "interception" within the
meaning of the wiretap statute. The defendant then argues that
G. L. c. 272, § 99 (C) (3), which categorizes willfully using a
recording made through interception as a misdemeanor, applied
here and mandated that the trial judge exclude the recording.
We conclude that based on the trial judge's uncontested
finding that the recording was not willful, the wiretap
statute's proscriptions do not apply. See G. L. c. 272, § 99.
The defendant provides no case law in support of his contention
that an accidental recording, of which no party was aware at the
time, is an unlawful, "secret" recording within the meaning of
G. L. c. 272, § 99. The two cases cited by the defendant, Pine
v. Rust, 404 Mass. 411, 413-414 (1989), and Vita v. New England
Baptist Hosp., 494 Mass. 824, 825, 835 (2024), offer no support
for his argument, as they involve a defendant intentionally
hiding a tape recorder in her purse and a defendant
intentionally tracking a web user's browsing data, respectively.
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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
25-P-339
KAREN BALCHUNAS & another1
vs.
THOMAS FARDY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Thomas Fardy, appeals from a Superior Court
jury verdict awarding the plaintiffs, Karen Balchunas and Marisa
Brown, damages for civil assault and battery and intentional
infliction of emotional distress. The defendant argues that the
trial judge abused his discretion by admitting two photographs
and an audio recording into evidence. We affirm.
Background. Balchunas and the defendant lived together as
domestic partners for approximately thirty years. Brown is
Balchunas's adult daughter. On September 9, 2014, the defendant
physically attacked and strangled Balchunas. Two days later,
when the defendant again began behaving aggressively, Balchunas
1 Marisa Brown. called Brown to come to her home. Shortly after Brown arrived,
she saw the defendant "grab[] a full bottle of wine and slam the
fridge." Brown and Balchunas went into an office area at the
back of the house to get away from the defendant. When the
defendant entered the office about ten minutes later, Brown
picked up Balchunas's cell phone, held it up to the defendant,
pushed a button on the side of the phone, and told the defendant
she would call 911 if he did not go back to bed and leave them
alone. The defendant then strangled Brown, putting his hands
around her throat. He also punched Balchunas in the face
multiple times when she tried to intervene. The plaintiffs ran
out of the house and called the police, who arrested the
defendant.2 About three and a half years later, the plaintiffs
discovered that when Brown pushed the button on the side of
Balchunas's cell phone, she accidentally created an audio
recording of the incident.
Discussion. 1. Standard of review. We review a judge's
evidentiary rulings for an abuse of discretion. See Luppold v.
Hanlon, 495 Mass. 148, 154-155 (2025). An abuse of discretion
occurs "where we conclude the judge made a clear error of
judgment in weighing the factors relevant to the decision such
2 The defendant admitted to sufficient facts in the District Court on criminal charges of strangulation, assault and battery on a family or household member, and assault and battery.
2 that the decision falls outside the range of reasonable
alternatives." Id., quoting L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014).
2. Admission of the photographs. The defendant asserts
that the trial judge abused his discretion by admitting
photographs of Balchunas's injuries, because a prior judge
(motion judge) ordered exclusion from trial of any evidence that
had not been produced as of the date of her order, March 14,
2019. We disagree.
About three months after the motion judge's order, in June
2019, Balchunas brought the photographs to her deposition. The
plaintiffs had not provided the photographs to the defendant
prior to the motion judge's order, however, they were utilized
and discussed during Balchunas's deposition testimony. Shortly
before the trial began, the trial judge denied the defendant's
motion in limine to exclude the photographs. They were entered
into evidence during the trial.
A trial judge is free to alter a pretrial ruling in the
exercise of sound judicial discretion. See Commonwealth v.
Gonzalez, 22 Mass. App. Ct. 274, 277 n.5 (1986); see also
Commonwealth v. Gross, 447 Mass. 691, 693 n.2 (2006) (judge
retains authority to reconsider question of fact or law even
once previous judge has decided it). Although a "judge should
hesitate before undoing the work of another judge," see Herbert
3 A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 401
(2003), ultimately it is the trial judge's function as
gatekeeper to determine what evidence fairly can be presented to
the jury. Here, the defendant moved to exclude the photographs
prior to trial and objected when they were offered at trial on
the ground that their admission violated the motion judge's
order. The trial judge denied the pretrial motion and overruled
the defendant's trial objection based on his finding that the
plaintiffs disclosed the photographs by June 2019, about four
years prior to trial. The defendant argues that he lacked
notice that the photographs would be admitted into evidence,
because he relied on the motion judge's order. We agree with
the trial judge's implicit reasoning that there was no prejudice
where the defendant knew about the photographs for at least four
years at the time of trial and therefore had ample time to
prepare for any issues they might present. In any event, the
decision to alter the motion judge's ruling and permit the
photographs to be admitted into evidence at trial was well
within the trial judge's discretion. See Gonzalez, supra.
3. Admission of the recording. The defendant also argues
that the trial judge abused his discretion in admitting the
audio recording and committed criminal violations of G. L.
c. 272, § 99, the statute proscribing wiretapping (wiretap
4 statute), by playing the recording in the courtroom. We
disagree.
The defendant does not challenge the plaintiffs'
representation that Brown created the recording accidentally.
However, he contends that an accidental recording can still be a
secret recording, and therefore an "interception" within the
meaning of the wiretap statute. The defendant then argues that
G. L. c. 272, § 99 (C) (3), which categorizes willfully using a
recording made through interception as a misdemeanor, applied
here and mandated that the trial judge exclude the recording.
We conclude that based on the trial judge's uncontested
finding that the recording was not willful, the wiretap
statute's proscriptions do not apply. See G. L. c. 272, § 99.
The defendant provides no case law in support of his contention
that an accidental recording, of which no party was aware at the
time, is an unlawful, "secret" recording within the meaning of
G. L. c. 272, § 99. The two cases cited by the defendant, Pine
v. Rust, 404 Mass. 411, 413-414 (1989), and Vita v. New England
Baptist Hosp., 494 Mass. 824, 825, 835 (2024), offer no support
for his argument, as they involve a defendant intentionally
hiding a tape recorder in her purse and a defendant
intentionally tracking a web user's browsing data, respectively.
Even if we accepted the defendant's assertion that the recording
was an "interception," the wiretap statute provides suppression
5 as a remedy only for "defendant[s] in a criminal trial." G. L.
c. 272, § 99 (P); see Commonwealth v. Rainey, 491 Mass. 632,
638-639 (2023) (wiretap exclusionary rule not applicable to
probation proceedings because they are not criminal trials).
While the statute creates a private right of action as a
potential remedy, it makes no mention of exclusion in a civil
trial. See G. L. c. 272, § 99. Furthermore, even in those
criminal cases where the wiretap statute's suppression provision
applies and gives a defendant standing to move to suppress,
exclusion of an interception is not required. See Commonwealth
v. Santoro, 406 Mass. 421, 423 (1990) (judge has discretion not
to suppress unlawful interceptions, such as where no deterrent
purpose would be served by exclusion). Because the wiretap
6 statute did not require the judge to exclude the recording, he
did not abuse his discretion by admitting it as evidence at the
trial.3
Judgments affirmed.
By the Court (Desmond, Hershfang & Brennan, JJ.4),
Clerk
Entered: May 5, 2026.
3 The plaintiffs' request for attorney's fees incurred in defending this appeal is denied. Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019).
4 The panelists are listed in order of seniority.