Commonwealth v. Dorcely
Commonwealth v. Dorcely
Opinion of the Court
The defendant appeals from an order revoking his probation and imposing sentence. He argues that the judge committed an abuse of discretion in revoking his probation where the Commonwealth failed to prove by a preponderance of the evidence that he committed either one of two crimes (distribution of cocaine and armed assault with intent to murder) that formed the principal bases of the revocation. We affirm.
In 2013, the defendant pleaded guilty to unarmed robbery, assault and battery, and assault. On the charges of assault and assault and battery, the defendant was sentenced to the house of correction. On the charge of unarmed robbery, the defendant was sentenced to three years of probation from and after the committed sentences on the other charges. Once on probation, the defendant was required to, among other things, obey all laws and attend school, providing proof of attendance every thirty days. In 2016, the probation department issued the defendant a notice of probation violation, and, after a hearing, the judge found the defendant in violation of his probation for failing to comply with the aforementioned conditions.
"A determination whether a violation of probation has occurred lies within the discretion of the hearing judge. The Commonwealth must prove a violation of probation by a preponderance of the evidence." Commonwealth v. Bukin,
The defendant argues that the Commonwealth failed to prove that the substance he distributed was cocaine because Sergeant Detective Dwan could not have identified the substance merely by sight.
Sergeant Detective Dwan, the commander of the Boston police department Area A-1 drug control unit, testified regarding his extensive narcotics training and experience. He also testified to having seen and handled substances that were later tested and found to be crack cocaine. In addition to his own visual identification of the substance, Sergeant Detective Dwan testified that the buyer had admitted to buying crack cocaine from the defendant. The detective also testified that the buyer's companion had a hot crack pipe, which he could have inferred meant it was used minutes before to smoke a portion of what the defendant had sold. Based on his experience and his knowledge, the detective concluded that the substance was likely crack cocaine. The evidence was sufficient to establish that the defendant distributed cocaine.
The defendant also argues that the Commonwealth failed to prove that he committed an armed assault with attempt to murder where the only evidence of the crime was unreliable hearsay. We disagree. Reliable hearsay "can be the basis of a revocation." Commonwealth v. Durling,
The hearsay that the defendant alleges is unreliable is the recorded police interviews of five witnesses and grand jury testimony that the Commonwealth submitted in evidence. We discern no abuse of discretion in the judge's implicit finding that the hearsay was reliable. The factually detailed evidence, both in the interviews and in the grand jury testimony, is based on the witnesses' direct observations and personal knowledge. The circumstances surrounding the statements also lend support that the hearsay is reliable. See Commonwealth v. Maggio,
"If the judge determines that the defendant is in violation, ... [h]ow best to deal with the probationer is within the judge's discretion." Durling,
Order revoking probation and imposing sentence affirmed.
The defendant does not dispute that he failed to provide proof of school attendance.
The defendant does not challenge the sufficiency of proof for the other elements of the offense.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.