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19-P-386                                                Appeals Court

                   COMMONWEALTH   vs.   DONNA SILVIA.


                             No. 19-P-386.

           Bristol.     January 3, 2020. - March 10, 2020.

                 Present:   Hanlon, Blake, & Hand, JJ.


Mayhem. Joint Enterprise. Evidence, Intent, Joint
     venturer. Practice, Criminal, Motion to suppress.         Search
     and Seizure, Affidavit, Probable cause.



     Indictments found and returned in the Superior Court
Department on May 18, 2012.

     A pretrial motion to suppress evidence was heard by D.
Lloyd Macdonald, J., and the cases were tried before E. Susan
Garsh, J.


     Dana Alan Curhan for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.


     BLAKE, J.    Following a jury trial in the Superior Court,

the defendant, Donna Silvia, was convicted of mayhem, assault

and battery by means of a dangerous weapon causing serious
                                                                      2


bodily injury, 1 and intimidation of a witness. 2   Prior to trial,

the defendant moved to suppress statements that she made to the

police and evidence obtained from the search of a video

surveillance system.   The motions were denied.     Later, however,

in response to the defendant's motion for reconsideration, the

Commonwealth agreed to the suppression of the defendant's

statements that were made during her interview at the police

station, after her involuntary transport to the station without

probable cause.    See Commonwealth v. Melo, 472 Mass. 278, 297-

298 (2015).   On appeal, the defendant contends that the evidence

was insufficient to prove that she engaged in a joint venture to

commit mayhem and that it was error to deny her motion to

suppress the evidence obtained from the surveillance system. 3     We

affirm.

     Background.    In light of the defendant's challenge to the

sufficiency of the evidence, we review the evidence under the

familiar Latimore standard.   Commonwealth v. Latimore, 378 Mass.




     1 The judge dismissed the conviction for assault and battery
by means of a dangerous weapon as duplicative of the mayhem
conviction.

     2 The Commonwealth prosecuted the case on the theory that
the defendant was a joint venturer with another person, John
Soares. Soares was tried separately and convicted.

     3 The defendant's brief makes no argument with respect to
the conviction of intimidation of a witness.
                                                                     3


671, 676-677 (1979).   The defendant owned Columbia Towing 4 in

Fall River.   The defendant ran the company; she made all of the

business decisions and handled all of the money.    The victim had

worked for Columbia Towing, driving a tow truck and repairing

vehicles, since 2005 or 2006.   During that time, he lived in an

apartment owned by the defendant.    The victim considered the

defendant and her husband to be "like family."    In March 2012,

the defendant's relationship with the victim took an abrupt turn

for the worse when the defendant, who for several years had been

concerned that money had gone missing from the towing company,

accused the victim of stealing $50,000.

     Matters rapidly came to a head.    On March 27, 2012, the

defendant watched as her husband and James Connors, a part-time

employee of Columbia Towing, beat the victim.    During the

beating, which took place at Columbia Towing, the defendant

questioned the victim about the missing money and demanded that

he admit to stealing the money. 5   The victim denied that he had

stolen the money.   Before the victim left, the defendant took

the victim's cell phone, truck keys, and bike.




     4 We use the term "Columbia Towing" to refer to the company
and its physical facilities.

     5 The victim described the beating as getting the "living
crap beat out of [him]" and being continually "wailed on." The
victim suffered bruises and injuries to, among other places, his
face.
                                                                       4


     When the victim returned to work the next day, the

defendant continued to demand a written confession from him.      At

around midday, she told the victim to write a confession; he

wrote a statement denying that he had stolen the money but

suggesting how it could have been stolen.    After the defendant

read the statement, she demanded that the victim write another

letter confessing to stealing the money.    At that point, John

Soares, a customer of Columbia Towing, entered the building. 6

The victim knew Soares, as he was often at the business and

performed some plumbing work there and at other properties owned

by the defendant.   The victim had never had any prior problems

with Soares.   When Soares entered the building, he was carrying

a bag of tools.   Soares first went to the defendant's office and

met with the defendant, her husband, and Connors. 7

     Columbia Towing was equipped with a surveillance system

that included cameras, monitors, and a digital video recorder

(DVR).   After Soares arrived, the defendant's husband and

Connors moved the surveillance cameras in the garage so that

they faced the ceiling.




     6 Soares was described as very muscular, weighing between
270 and 280 pounds, and at least six feet, three inches tall.

     7 The side door to Columbia Towing opened into a hallway, on
the immediate right was a bathroom, on the left was an entrance
to the garage, five feet ahead was the office. There was a
bench in the hallway.
                                                                     5


     While the defendant was meeting in her office with Soares,

the victim sat on the bench in the hall, as instructed by the

defendant.    Soares, who held the bag that he had brought with

him, then told the victim to accompany him to the garage.    The

two entered the garage.    Video surveillance recordings from

cameras outside the garage showed the defendant, her husband,

and Connors leaving the building as Soares led the victim to the

garage.   In the garage, Soares asked the victim if he had stolen

the defendant's money; the victim again denied doing so.    Soares

responded, "You know why they call me the sandman? . . . Because

people go to sleep."    Soares removed a set of cutting shears,

some wipes, and a propane blow torch from his bag.    Soares told

the victim to put a towel in his mouth and place his hands on a

tool bench.   He then instructed the victim to close his eyes.

After the victim complied with all of Soares's directives, the

victim felt his right pinkie finger being cut and heard a snip.

The victim opened his eyes and found that his finger was

dangling off his hand by a piece of skin.    Soares briefly left

the garage.   The victim remained where he was; he was in shock

and could not believe what had happened.

     At some point the defendant had come back into the building

and gone to her office.    She passed a window that looked into

the garage.   Soares met the defendant in her office.   The video

recording, as reflected in the still photographs, shows the
                                                                       6


defendant looking through her belongings and handing something

to Soares.    When Soares returned to the garage, he had a knife

in his hand, which the victim had not seen before.     Soares used

the knife to make the final cut that severed the victim's

finger, then he left the garage with something in his hand.      The

victim wrapped his hand with the towel that had been in his

mouth.

     After Soares left the garage, he walked into the

defendant's office and placed the severed finger on the counter

in front of the defendant.    Soares then returned to the garage,

cleaned the shears with the wipes that he had brought with him,

and burned the wipes with the blow torch from his bag.

     The defendant entered the garage; in a stern voice, she

repeatedly told the victim "to tell the truth."     The victim

eventually replied, "Fine.    Whatever.   I did it."   The defendant

then told the victim to say that he lost his finger in an

accident someplace other than at Columbia Towing.      At some point

after the defendant entered the garage, Soares took his bag and

left.    Neither Soares nor the defendant requested any medical

assistance for the victim and neither preserved the finger for

possible reattachment. 8




     8   The victim's finger was never located.
                                                                     7


     After the defendant left the garage, she returned to her

office.   Because the victim was cold, he went to the office and

asked the defendant for his keys so that he could retrieve a

jacket from his truck.    The defendant gave him the keys.   After

the victim retrieved his jacket, he returned to the office,

where the defendant, her husband, and Connors were eating

Chinese food.   Connors then asked the victim to step into the

bathroom; after they entered the bathroom, the victim heard the

police yelling his name.

     When the victim came out of the bathroom, the police

noticed that the victim had facial injuries and that his right

hand was wrapped in a blood-soaked rag.    After some prodding by

the police, the victim removed the rag and the police saw that

the victim's right pinkie finger had been cut off with a very

smooth and clean cut.    They described the victim as shocked,

nervous, scared, and defeated.

     The defendant focused her comments to the police -- not on

the victim's condition -- but on the missing money.    She told

the police that the victim had stolen money from her business

and they had worked out a payment plan; she did not want to

press charges, she just wanted the money back.    She did not

mention the victim's finger.

     After the victim was transported to a hospital, the police

"froze" the scene at Columbia Towing to conduct an
                                                                      8


investigation.     They noticed that the cameras inside the garage

were pointed to the ceiling and the video monitoring system

appeared to be missing some of its recording components.     One of

the police officers at the scene saw electrical components and a

black rectangular box that appeared to be a DVR inside a red

Ford Expedition (SUV) parked across the street from Columbia

Towing.   Because the police believed that these items were the

equipment missing from Columbia Towing, they secured and towed

the SUV from the scene.     The DVR contained surveillance video

recordings from Columbia Towing; the recordings were admitted in

evidence, along with still photographs from those recordings. 9

The surveillance system did not capture what occurred in the

garage.

     Discussion.    1.   Sufficiency of evidence.   The defendant

contends that the evidence was insufficient to prove that she

knowingly participated in a joint venture with Soares to commit

mayhem.   The elements of mayhem are set forth in G. L. c. 265,

§ 14, which states:      "Whoever, with malicious intent to maim or

disfigure . . . cuts off or disables a limb or member, of

another person, and whoever is privy to such intent, or is




     9 The defendant challenges the admission of the video
surveillance evidence as discussed, infra. However, sufficiency
is determined in light of the evidence admitted at trial,
regardless of the propriety of that admission. Commonwealth v.
Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
                                                                     9


present and aids in the commission of such crime," is guilty of

mayhem.   The Commonwealth proceeded under a theory of joint

venture liability and therefore was required to prove "that the

defendant knowingly participated in the commission of the crime

charged, alone or with others, with the intent required for that

offense."    Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).

Mere presence at the scene of the crime is insufficient to prove

a defendant's knowing participation, even if "supplemented by

evidence that the defendant 'knew about [the crime] in

advance.'"    Commonwealth v. Gonzalez, 475 Mass. 396, 414 (2016),

quoting Zanetti, supra at 470 (Appendix).   "Rather, there must

be some additional proof that the defendant 'consciously . . .

act[ed] together [with the principals] before or during the

crime with the intent of making the crime

succeed.'"    Gonzalez, supra, quoting Zanetti, supra.   The intent

element may be established "by direct or inferential proof that

the assault was intentional, unjustified, and made with the

reasonable appreciation on the assailant's part that a disabling

or disfiguring injury would result."    Commonwealth v. McPherson,

74 Mass. App. Ct. 125, 128 (2009), quoting Commonwealth

v. Lazarovich, 28 Mass. App. Ct. 147, 154 (1989).

     The defendant's shared intent to commit mayhem is rooted in

the relationship between the victim, Soares, and the defendant.

The three were not strangers.   The defendant had authority over
                                                                   10


both the victim and Soares.   She was the victim's employer and

landlord, and she was Soares's employer. 10   The defendant's

recruitment of Soares to increase the pressure on the victim to

confirm her suspicion that the victim had stolen her money was

in keeping with her past conduct:   the day before Soares cut off

the victim's finger, the defendant had watched as her husband

and another employee tried to beat a confession out of the

victim.   When that gambit proved unsuccessful, she called on

Soares, an imposing figure, to resolve the missing money issue.

Soares entered the garage with a bag containing the tools that

were ultimately used to commit the crime and destroy evidence of

the crime.   The preplanned, calculated use of a weapon, without

warning, on a defenseless person supports an inference of intent

to maim or disfigure.   See McPherson, 74 Mass. App. Ct. at 128

(hitting unsuspecting victim in head with baseball bat sufficed

to prove intent to maim or disfigure).   The defendant's

deliberate choice to absent herself during the assault, despite

being present at the beating the previous night, supports the

inference that she knew exactly what Soares planned to do.

     Moreover, the crime occurred at the defendant's business,

and she and others caused the surveillance system to be altered

just prior to the assault; it is fair to infer their purpose was


     10The victim and Soares knew each other based on their
respective business relationships with the defendant.
                                                                    11


to avoid capturing the attack.   The defendant told Soares about

the missing money and allowed him to amputate the victim's

finger in furtherance of her mission to secure a confession.     It

is evident that Soares knew his purpose was to extract a

confession from the victim by all available means, and Soares's

knowledge that the defendant blamed the victim for the missing

money is evidence that the defendant "knowingly participated in

the commission of the [crime] charged, [along with Soares], with

the intent required for that offense."   Zanetti, 454 Mass. at

466.   Likewise, it is fair to infer from the evidence that when

Soares was unable to amputate the finger fully, the defendant

gave him the knife that he used to make the final cut; and that

after the finger was severed, Soares delivered the victim's

finger to the defendant in her office, thus demonstrating her

active participation in the mayhem.   As a result, the

Commonwealth proved that the defendant collaborated with Soares

not only before, but during and after the amputation.    "[T]here

is no need to prove an anticipatory compact between the parties

to establish joint venture . . . if, at the climactic moment[,]

the parties consciously acted together in carrying out the

criminal endeavor."   Commonwealth v. McCray, 93 Mass. App. Ct.

835, 843 (2018), quoting Commonwealth v. Sexton, 425 Mass. 146,

152 (1997).   Contrast Commonwealth v. Hogan, 379 Mass. 190, 192-

193 (1979) (evidence was insufficient to prove joint venture for
                                                                   12


mayhem where defendant waited in car while others entered

victim's home to attack him).

     Following the assault, the defendant tried to cover up the

crime by insisting that the victim create a story to explain

that the amputation was an accident and did not happen at

Columbia Towing.   This constitutes evidence of the defendant's

consciousness of guilt, further proving the defendant acted in

concert with Soares.   See Commonwealth v. Javier, 481 Mass. 268,

283-284 (2019).    See also Commonwealth v. Vick, 454 Mass. 418,

423-424 (2009), quoting Commonwealth v. Stuckich, 450 Mass. 449,

453 (2008) ("Consciousness of guilt instructions are permissible

when there is an 'inference of guilt that may be drawn from

evidence of . . . concealment, or similar acts,' such as . . .

destruction or concealment of evidence, or bribing or

threatening a witness").

     The defendant relies on Gonzalez, 475 Mass. 396, to support

her claim of insufficient evidence.   In Gonzalez, the issue was

whether the defendant knew of and shared the coventurers' intent

to kill.   See id. at 396-397.   In concluding that the evidence

of the defendant's intent was insufficient, the court focused on

the lack of proof beyond a reasonable doubt of the defendant's

presence at the crime, aid to the other defendants in committing

the crime, and communication with the other defendants around

the time that the crime was committed.   See id. at 407-413.
                                                                    13


     By contrast, here, the evidence was that the defendant took

the victim's keys and phone the night before the assault, which

ensured that he would have to return to Columbia Towing.     She

was present when Soares arrived, and she met with Soares in her

office immediately before the assault.   In addition, the jury

could reasonably infer that the defendant told Soares that the

victim had stolen money from her, that the defendant gave Soares

the knife that he used to finish severing the finger, and that

Soares showed the defendant the severed finger.   Moreover, the

evidence showed that shortly after Soares had finished severing

the victim's finger, the defendant continued to try to extract a

confession from the victim and told the victim to say that the

finger was amputated during an accident that did not happen at

Columbia Towing.   We are satisfied that the evidence was

sufficient.

     2.   Motion to suppress.   The defendant claims it was error

to deny her motion to suppress the evidence obtained from the

DVR because the search warrant affidavit failed to establish

probable cause and contained statements of the defendant that

were suppressed.   When considering the sufficiency of a warrant

application, our review "begins and ends with the 'four corners

of the affidavit.'"   Commonwealth v. Cavitt, 460 Mass. 617, 626

(2011), quoting Commonwealth v. O'Day, 440 Mass. 296, 297

(2003).   "In determining whether an affidavit justifies a
                                                                    14


finding of probable cause, the affidavit is considered as a

whole and in a commonsense and realistic fashion . . .

."   Cavitt, supra.   The affidavit should not be "parsed,

severed, and subjected to hypercritical analysis."     Commonwealth

v. Donahue, 430 Mass. 710, 712 (2000), quoting Commonwealth

v. Blake, 413 Mass. 823, 827 (1992).   "We evaluate whether the

affidavit underlying the warrant application satisfies the

probable cause standard required by art. 14 [of the

Massachusetts Declaration of Rights] de novo."    Commonwealth

v. Robertson, 480 Mass. 383, 386 (2018).

     As a preliminary matter, at oral argument the defendant

conceded that, while her statements had been suppressed, those

of her husband were not.   Further, the defendant does not have

"target standing" to challenge the statements made by her

husband.   See Commonwealth v. Santiago, 470 Mass. 574, 577-578

(2015) ("target standing permits a criminal defendant . . . to

assert that a violation of the [Constitutional] rights of a

third party entitled [the defendant] to have evidence suppressed

at his trial" [quotations and citation omitted]).    Although the

Supreme Judicial Court has cautioned that distinctly egregious

conduct by the police might warrant the reliance in a

suppression hearing on a violation of a third party's

constitutional rights, id. at 578, the defendant here does not

allege that such conduct occurred, nor did it occur.    Thus, the
                                                                   15


defendant's husband's statements to the police were properly

considered by the motion judge.   Because the affidavit contained

statements of the defendant that were subsequently suppressed,

we consider whether the affidavit was supported by probable

cause after the defendant's statements are excised from the

affidavit.    See Commonwealth v. Westerman, 414 Mass. 688, 691-

692 (1993).

     The affidavit set forth the following information.     On

March 28, 2012, at about 4:30 P.M., the police discovered the

victim, bleeding, and with his finger amputated, at Columbia

Towing.   The police obtained information that the victim was

assaulted and maimed that day.    The defendant's husband told the

police that the victim recently had taken responsibility for

stealing over $50,000 from Columbia Towing.     The defendant's

husband also told the police that Columbia Towing was equipped

with a video surveillance system, and that the surveillance

system was present when Columbia Towing opened that day.     On the

day of the assault, the police saw a monitor and cameras at the

scene, but they did not see a recording device for the

surveillance system.   Additionally, they saw a DVR in a nearby

SUV, which was not owned by the defendant. 11   Each of these


     11The motion judge found that the defendant did not have
standing to challenge the search and seizure of the SUV, but did
have standing to challenge the search of the DVR. The
warrantless seizure of the SUV also was found proper under the
                                                                  16


assertions had a source independent from the statements made by

the defendant and, together, were sufficient to establish

probable cause that the DVR contained evidence of a crime.

See Commonwealth v. Keown, 478 Mass. 232, 238 (2017), cert.

denied, 138 S. Ct. 1028 (2018).   For that reason, none of the

defendant's statements that were suppressed were necessary to

establish probable cause.   There was no error in denying the

motion to suppress.

                                    Judgments affirmed.




automobile exception. See Commonwealth v. Motta, 424 Mass. 117,
124 (1997). The defendant does not challenge any of these
findings on appeal.
