NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11946

               COMMONWEALTH   vs.   BRANDEN E. MATTIER.



            Suffolk.    January 7, 2016. - May 2, 2016.

     Present:    Gants, C.J., Cordy, Botsford, Duffly, Lenk,
                            & Hines, JJ.


      Practice, Criminal, Execution of sentence, Sentence.



     Indictments found and returned in the Superior Court
Department on August 29, 2013.

     A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.; the cases were tried before Jeffrey A. Locke,
J.; and a motion for stay of execution of sentence was
considered by Locke, J.

     A motion for stay of execution of sentence filed in the
Supreme Judicial Court was referred to Spina, J., and was
considered by him.


     Rebecca A. Jacobstein, Committee for Public Counsel
Services, for the defendant.
     Randall E. Ravitz, Assistant Attorney General (Gina
Masotta, Assistant Attorney General, with him) for the
Commonwealth.


    HINES, J.    The defendant, Branden E. Mattier, was convicted

by a jury on three indictments charging conspiracy, G. L.
                                                                   2


c. 274, § 7; attempted larceny, G. L. c. 274, § 6; and identity

fraud, G. L. c. 266, § 37E, respectively.   The charges stemmed

from an attempt by the defendant and his half-brother to defraud

One Fund Boston, Inc. (One Fund),1 of approximately $2 million by

claiming that a long-deceased aunt had been injured in the 2013

bombing at the finish line of the Boston Marathon.   The judge

imposed a State prison sentence of from three years to three

years and one day on the conspiracy charge and concurrent

sentences of three years' probation for the attempted larceny

and identity fraud charges, to run from and after the committed

sentence.

     The defendant appealed from his convictions and filed in

the trial court a motion for stay of the execution of his

sentence pending appeal.   The judge denied the motion.   After

his appeal was docketed in the Appeals Court, the defendant

filed a motion for stay of the execution of the sentence in that

court.   We granted the defendant's application for direct

appellate review of his appeal, and thereafter, the defendant

filed a motion for stay in this court.   The matter was referred

to the single justice, who denied the motion.   The defendant

filed this appeal from the single justice's order, together with


     1
       One Fund Boston, Inc., was established as a charitable
organization to collect and distribute funds to assist the
victims of the April, 2013, Boston Marathon bombing.
                                                                      3


a motion for an expedited ruling.2   In response to the

defendant's motion for an expedited ruling on his appeal from

the single justice's order denying the stay, we now address

separately the merits of that aspect of his appeal.

     Analysis.   We review the single justice's order denying a

motion for stay to determine (1) "whether the single justice

committed error of law in declining to make an independent

exercise of discretion on the issue of the stay of execution, in

place of that made by the trial judge"; and (2) whether the

single justice erred in ruling that the trial judge's action on

the motion to stay was not an abuse of discretion.     Commonwealth

v. Hodge (No. 1), 380 Mass. 851, 852 (1980).   The single justice

and the trial judge, as they were entitled to do, denied relief

without explanation.   See Commonwealth v. Cohen (No. 2), 456

Mass. 128, 132-133 (2010).

     When considering the merits of a motion to stay the

execution of a sentence, two factors are considered:      (1)

whether the defendant's appeal presents "an issue which is

worthy of presentation to an appellate court, one which offers

some reasonable possibility of a successful decision,"

Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting


     2
       The defendant's appeal from the convictions has not been
consolidated with his appeal from the single justice's order
declining to stay execution of his sentence.
                                                                   4


Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979); and (2)

"whether the defendant's release poses a security risk,"

Commonwealth v. Charles, 466 Mass. 63, 77 (2013).    The first

prong is a "pure question of law or legal judgment."      Allen,

supra, citing Levin, supra at 505.   Without in any way

prejudging the merits of the defendant's direct appeal, we are

not persuaded that he has met his burden to establish a

"reasonable possibility of . . . success[]" such that the single

justice's denial of the motion to stay was an abuse of

discretion.3

     To prevail on this aspect of his appeal from the single

justice's order, the defendant must demonstrate a reasonable

possibility of success on his challenge to the conspiracy

conviction, the crime for which the judge imposed the committed

portion of the sentence.    The defendant makes two arguments in

his attempt to meet this burden:   (1) the evidence supporting

the conspiracy conviction was secured as the result of an

unlawful arrest on the identity fraud charge and should not have

been admitted at trial; and (2) the remaining evidence offered

by the Commonwealth to prove the conspiracy charge was

"virtually non-existent."   Where, as here, the success of the


     3
       Because of our conclusion regarding the reasonable
likelihood of success, we do not analyze whether the defendant
poses a security risk.
                                                                   5


defendant's appeal from the conspiracy conviction depends in

large part on the validity of the identity fraud conviction, the

defendant's burden is to demonstrate as well a reasonable

possibility of success on his appeal from the identity fraud

conviction and that reversal of the identity fraud conviction

vitiates the conspiracy conviction.   We are not persuaded that

he has done so.

    The defendant contends that the conviction fails as a

matter of law on two grounds:   (1) the forgery of a physician's

letter submitted as part of the fraudulent One Fund claim does

not meet the statutory requirement that the defendant "pose as

[another] person"; and (2) the defendant did not obtain anything

of value while posing as that physician.   Building on this

argument, the defendant contends that the evidence seized as a

result of the warrantless arrest on the identity fraud and

attempted larceny charges must be suppressed.   The motion to

suppress was erroneously denied, so the argument goes, because

in the absence of conduct implicating the identity fraud

statute, the police had no probable cause for the arrest on that

charge and the warrantless arrest for attempted larceny, a

misdemeanor, cannot stand.

    We conclude that regardless of the merits of the appeal

from the identity fraud conviction, the denial of the stay was

not an abuse of discretion where the evidence was lawfully
                                                                     6


seized on an alternative ground.     More specifically, the

information contained in the affidavit in support of the search

warrant application established probable cause to arrest the

defendant for attempted larceny and authorized the search of the

defendant at the time of the arrest.     In particular, the

affidavit contained the following information establishing

probable cause for the attempted larceny arrest:     (1) On June

12, 2013, the defendant submitted a claim on behalf of Onevia

Bradley for injuries alleged to have occurred at the site of the

Boston Marathon bombing on April 15, 2013; (2) the claim

incorporated a forged letter purporting to be from Peter A.

Burke, M.D., at the Boston Medical Center; and (3) Bradley died

on May 19, 2000.     We conclude, based on the affidavit, that the

police had probable cause for the arrest and that the subsequent

search was lawful.     Also, the warrant expressly authorized the

seizure of mobile devices and the search of the defendant at the

residence where the arrest took place.

    Last, where the defendant's cellular telephone was lawfully

seized, the cellular telephone text messages implicating the

defendant in the conspiracy as charged were properly admitted at

trial.   Thus, the defendant's failure to make the requisite

showing as to the conspiracy conviction is fatal to his claim

for a stay pending appeal.

    Accordingly, we conclude that the single justice did not
                                                                   7


err in finding that the trial judge did not abuse his discretion

in denying the defendant's motion for stay.   Nor do we discern

any abuse of discretion by the single justice in electing not to

exercise independent discretion in review of the trial judge's

order.   We therefore affirm the decision of the single justice.

                                   So ordered.
