Date: 11-17-2015

Case Style: COMMONWEALTH vs. RICHARD FASANELLI.

Case Number: 14-P-75

Judge: Ariane D. Vuono

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Plaintiff's Attorney: Sheryl F. Grant

Defendant's Attorney: Nona E. Walker

Description: Based upon the evidence at trial, the jury
could have found the following facts.2 Around 10:00 A.M. on
January 19, 2012, Malden police Sergeant Evan Tuxbury was
monitoring the Adams Street area of Malden for housebreaks or
suspicious activity.3 Tuxbury was in an unmarked vehicle when he
saw two males approaching from behind. He watched as they
walked past 132 Adams Street, turned back abruptly, and entered
the home's enclosed porch. The men were out of Tuxbury's view
for approximately one minute before they exited the porch and
began walking back the way they came. Tuxbury drove around the
block in an unsuccessful attempt to locate the men, then radioed
to other officers in the area to be on the lookout for the men
as he described them. Tuxbury returned to the Adams Street home
to speak with the homeowner, Dawn Plati.
Plati testified that she was getting ready for her day that
morning when her doorbell rang. She did not answer until she
heard the doorknob jiggling. Plati opened the door and saw two
men she did not know. They asked for an individual, whose name
carrying a red gym bag.4 As Molis was observing the men, a
marked police cruiser turned onto the street and began heading
toward them. Molis observed the men react to seeing the cruiser
by "quickly mov[ing] behind a house, out of [his] sight." He
told Malden police Detective John P. Kelley which house the men
had gone behind. Kelley went behind that house and encountered
the defendant, standing on the back porch and holding the red
gym bag. Kelley said "Hey." The defendant "c[a]me running down
the stairs, dropped the bag and hopped the fence in a flash."
Kelley said "Stop. Police," but the defendant "hopped the fence
and took off." Kelley secured the gym bag and radioed other
units about the path of the defendant's flight.
After receiving information from other officers that they
had found someone hiding under the porch of a house on a
neighboring street, Kelley went to that location and identified
the defendant as the person he had ordered to stop. The
defendant was removed from under the porch, and Tuxbury
identified him as one of the men he had seen attempting to enter
132 Adams Street.5 On the ground where the defendant had been
hiding, police recovered jewelry, a silver cup, a prescription
4 Tuxbury did not observe the men with a bag at the time he broadcast the descriptions. 5 After responding, Malden police Detective Michelet Montina noticed an individual come out from behind a house on Malden Street, Montina followed and spoke with him. Tuxbury later identified him as the other person he had seen attempting to enter 132 Adams Street.

4
bottle with the name "Kimberly Joseph" on it, and a hypodermic
needle.
Kimberly Joseph testified that she lives at 112 Oakland
Street in Malden, that her house was broken into on January 19,
2012, and that the point of entry was the door to her screened
in porch. Taken were a laptop computer and jewelry from
Joseph's and her daughter's rooms. Joseph identified some of
the items recovered from under the porch where the defendant was
arrested as being those taken from her home. She identified her
husband's shoes and his red gym bag, and she recognized the
jewelry as belonging to her or her daughter.
Discussion. 1. Denial of the motion to suppress. The
defendant argues that his motion to suppress should have been
allowed because the police lacked reasonable suspicion to stop
him, and that the judge erroneously applied a probable cause
analysis in concluding that the stop was proper. He also
challenges some of the judge's subsidiary findings. "[W]e adopt
the motion judge's subsidiary findings of fact absent clear
error, but we independently determine the correctness of the
judge's application of constitutional principles to the facts as
found." Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).
There was no error in the judge's findings. Her finding
that "Kelley asked [the defendant] what he was doing [and] then
said, 'Stop, police,' as [the defendant] dropped the bag and

5
hopped the back fence," mirrors Kelley's testimony at the
hearing on the motion to suppress, and amply supports the
conclusion that the defendant was stopped at that moment. See
Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007) ("A person is
seized by the police only when, in light of all the attending
circumstances, a reasonable person in that situation would not
feel free to leave"). Her findings that, at the time of the
stop, "police were aware that [two men, one of whom matched the
defendant's descriptions] had tried the doorknob of a nearby
residence, asked for someone who did not live there, and then
left," and that "[the police] were further aware both men ran
from a police cruiser that was not pursuing them," are supported
by Tuxbury's testimony regarding his actions after speaking with
Plati and Molis's testimony that he saw the defendant and his
companion "walking on the sidewalk, and when they saw the
cruiser they ran toward the rear of a house"; "[t]hey
immediately quickly reacted by running toward the rear of a
house." Finally, the judge's findings that "the events
transpired in an area that had had recent break-ins, at a time
that break-ins are known to occur," are supported by Molis's
testimony regarding his thirty-two years of experience as a
police officer.
Based upon her findings, the judge would have been
warranted in concluding that the police had reasonable suspicion

6
to make a threshold inquiry of the defendant. See, e.g.,
Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 371 (2010). It
does not matter that there may be innocent explanations for the
defendant's behavior; "[s]eemingly innocent activities taken
together can give rise to reasonable suspicion justifying a
threshold inquiry." Commonwealth v. Watson, 430 Mass. 725, 729
(2000). The judge's findings amply support her conclusion that,
at the time the defendant was stopped, the police had "probable
cause to believe that the [defendant] had been attempting to
commit a break-in" at 132 Adams Street, see id. at 733
("Probable cause exists when the police have sufficient
information to justify a reasonable person's belief that the
defendant has committed or is committing a crime"), and implicit
in this conclusion is a determination that the police had
reasonable suspicion, see Commonwealth v. Santiago, 452 Mass.
573, 577 (2008) ("[T]he probable cause standard is more rigorous
than that of reasonable suspicion"); Commonwealth v. Overmyer,
469 Mass. 16, 19 n.6 (2014) ("[R]easonable suspicion is a less
demanding standard than probable cause"). There was no error.
2. Remaining claims. The defendant's remaining claims
require little discussion. While we agree with the defendant
that the judge should have instructed the jury "that the
Commonwealth has the burden of proving that the defendant, at
the time of the breaking and entering, intended to steal

7
property of a value in excess of $250," Commonwealth v. Hill, 57
Mass. App. Ct. 240, 249 (2003), once the jury concluded "(as
they evidently did) that the defendant had [attempted to]
enter[] the [dwelling] with an intent to steal, they were not
required to conclude that he had intended to limit his theft to
property under $250 in value." Id. at 249 n.6. Applying the
familiar Latimore standard, viewing the evidence in the light
most favorable to the Commonwealth, there was no error in the
judge's denial of the motion for required findings of not guilty
both at the end of the Commonwealth's case and at the close of
the evidence. See Commonwealth v. Latimore, 378 Mass. 671, 676
677 (1979).
Insofar as the defendant challenges the judge's
instructions regarding the crimes of breaking and entering and
attempting to break and enter in the daytime with the intent to
commit a felony, we agree that the judge's instruction "that
larceny is a felony" was error. Commonwealth v. Hill, supra at
248-249. However, the error did not create a substantial risk
of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass.
8, 13 (1999). "[T]he case against the defendant was virtually
irrefutable," id. at 14; the jury were not required to conclude
that the defendant intended to limit his stealing to property
valued at less than $250, Hill, supra at 249 n.6, and we are not
persuaded that the error "materially influenced" the jury's
decision, Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

Outcome: The defendant's claim that the judge failed to instruct the
jury on specific intent is belied by the record,6 and there was
no risk that the jurors convicted the defendant of the
nonexistent crime of "breaking and entering in the daytime,"
where the counts of the indictment were attached to the verdict
slips and described the crimes of breaking and entering a
building "in the daytime with intent to commit a felony
therein," and "attempt[ing] to commit a Breaking [and] Entering
in the Daytime with Intent to Commit a Felony."
Judgments affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: