Commonwealth v. Connor
Commonwealth v. Connor
Opinion of the Court
The defendant, Kevin J. Connor, appeals from a Superior Court order revoking his probationary sentence and imposing his suspended house of correction sentence. On appeal, he claims that (1) there was insufficient evidence to support the revocation of his probation; (2) the hearsay considered by the judge was unreliable; and (3) the judge erred in continuing the hearing after the Commonwealth rested, and by ordering sua sponte that additional evidence and witnesses be produced at the continued hearing. We affirm.
Discussion. 1. Sufficiency of the evidence. We review a judge's decision to revoke the defendant's probation for an abuse of discretion. We examine the record to determine "whether [it] discloses sufficient reliable evidence to warrant the findings by the judge." Commonwealth v. Morse,
From the evidence presented on the first day of the hearing by probation Officer Dingle, the judge could have found that on August 24, 2015, police officers arrived at the defendant's apartment after a neighbor telephoned 911 to report that he could see on his security camera a man and a woman fighting. Officers spoke to the defendant, who insisted that "there was nothing going on." They then spoke to the neighbor, who told the police that he had seen the defendant putting his hands on the victim, his girl friend, whom he lived with along with her two young sons. When police went inside the apartment, they did not observe any visible markings on the victim. They spoke to the victim's young son, who was hiding in the bathroom and appeared visibly scared. The boy told police that the defendant had put his hands on the victim.
The neighbor also testified on the first day of the hearing. While his testimony largely differed from what he told the police at the scene, he did testify that he observed someone on his surveillance camera "trying to beat up the girl next door," referring to the victim. The neighbor denied that he told police that he had seen the defendant hit the victim. The neighbor also admitted that he and the defendant were friends, that they had discussed the case prior to the hearing, and that the defendant had given him a ride to the court house that day.
We conclude that sufficient evidence was presented, on the first day of the hearing, to support the judge's decision to revoke the defendant's probation. Even though some of the evidence was hearsay, when coupled with the testimony given by Dingle and the neighbor, the judge could have found by a preponderance of evidence that the defendant either pushed or hit the victim. Thus, the judge properly revoked the defendant's probation.
2. Hearsay statements. The defendant claims that the judge erred by admitting in evidence, through the testimony of probation Officer Dingle, the victim's child's statement, because it was hearsay and unreliable. We disagree. Hearsay is admissible in a revocation proceeding if it is reliable, and if reliable, then good cause has been established for its admission. Commonwealth v. Nunez,
3. Reopening the case. Finally, the defendant contends that the judge erred when he permitted the Commonwealth to reopen its case after it had rested. At the outset of the revocation hearing, Dingle informed the judge that only one of the expected witnesses was present, and asked the judge to continue the hearing so that all witnesses could testify or, in the alternative, to hear testimony of the one present witness and continue the hearing for the other witnesses. After questioning whether the other witnesses had been summonsed and the reason why one witness was not there, the judge then said, "We'll take this witness," and the parties proceeded to examine the neighbor. At the end of his testimony, the Commonwealth attempted to rest, but the judge stated he would not allow that, to which the Commonwealth repeated its request to continue the hearing, which the judge then allowed.
This case is akin to Commonwealth v. Burke,
Here, it is apparent from the record that the judge, in continuing the hearing, implicitly allowed the Commonwealth's request to hear testimony from the neighbor and then continue the hearing so that the other witnesses could be present. The confusion appears to stem from the fact that the judge delayed acting on the Commonwealth's request until after the neighbor had testified and the Commonwealth attempted to rest its case. However, like Burke, supra, technically the Commonwealth had not rested because the judge had yet to rule on its request to continue the case. We discern no error.
Order revoking probation affirmed.
Because we conclude that the Commonwealth presented sufficient evidence on the first day of the hearing to support the judge's finding that the defendant violated the terms of his probation, we need not address the propriety of the judge's decision to order the tape of the 911 call to be produced for the second day of hearing, and express no opinion on the matter here.
Furthermore, even if the Commonwealth had rested, this is not a case in which the judge reopened the evidence to permit the Commonwealth to supplement evidence on a missing element of the offense, in response to a defendant's motion for a required finding of not guilty. See Commonwealth v. Zavala,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.