Commonwealth v. Moscaritolo

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SJC-13575

COMMONWEALTH vs. MICHAEL MOSCARITOLO.

Plymouth. November 10, 2025. – March 6, 2026.

Present: Budd, C.J., Gaziano, Wendlandt, Georges,

& Wolohojian, JJ.

Homicide. Felony-Murder Rule. Burglary. Joint Enterprise.

Practice, Criminal, Instructions to jury, Hearsay,

Duplicative convictions, Capital case. Malice. Evidence,

Hearsay, Joint venturer.

Indictments found and returned in the Superior Court

Department on November 25, 2015.

The cases were tried before Cornelius J. Moriarty, II, J.

Patricia A. DeJuneas for the defendant.

Melissa W. Johnsen, Assistant District Attorney, for the

Commonwealth.

WENDLANDT, J. Executing a plot hatched months prior to the

brutal killing of Robert McKenna (victim), the defendant,

Michael Moscaritolo, and his coventurers, James W. Ferguson and

2

Mark O'Brien,1 entered the victim's Marshfield home to steal the

victim's extensive firearm collection and marijuana plants. The

victim, however, was not an "easy mark." In the prolonged

struggle that ensued, the victim was struck repeatedly in the

head and body with a metal frying pan with sufficient ferocity

to dent the pan. The blunt force trauma to the victim's head,

together with a deep incision in his arm, caused the victim to

die of exsanguination. Following a second jury trial, the

defendant was convicted of murder in the first degree on the

theories of deliberate premeditation, extreme atrocity or

cruelty, and felony-murder.2

On appeal, the defendant challenges the sufficiency of the

evidence of deliberate premeditation, contends that the trial

judge erroneously denied his request for an involuntary

manslaughter instruction and improperly allowed the admission of

multilevel hearsay testimony, and claims that his conviction of

burglary with assault on an occupant, see note 2, supra, must be

1 The three coventurers were tried separately. We affirmed

O'Brien's conviction of murder in the first degree. See

Commonwealth v. O'Brien, 494 Mass. 288 (2024). Ferguson was

also convicted of murder in the first degree on a theory of

felony-murder; in Commonwealth v. Ferguson, 497 Mass. (2026),

also issued today, we affirm that conviction.

2 The defendant was also convicted of burglary with assault

on an occupant, in violation of G. L. c. 266, § 14; unarmed

robbery, in violation of G. L. c. 265, § 19 (b); and five counts

of larceny of a firearm, in violation of G. L. c. 266, § 30 (1),

at a prior trial. See note 18, infra.

3

vacated as duplicative of his felony-murder conviction.

Finally, the defendant asks that we exercise our extraordinary

authority under G. L. c. 278, § 33E, to reduce his conviction to

murder in the second degree or manslaughter.

After carefully reviewing the defendant's claims on appeal

and having conducted an independent review of the entire record,

we discern no error and no reason to exercise our extraordinary

authority under G. L. c. 278, § 33E, to order a new trial or to

reduce the verdict of murder in the first degree to a lesser

degree of guilt. Accordingly, we affirm.

1. Background. The following facts are supported by the

evidence presented at the defendant's second trial.

The victim was a wealthy, retired stockbroker who lived in

Marshfield. He operated a sophisticated marijuana "grow"

operation in the basement of his home and owned a collection of

firearms, which he housed in the attic crawl space above the

garage and guest bedroom closet. He showcased the grow

operation and the firearm collection to visitors, including

Thomas Gunning,3 who photographed these items.

Gunning also was acquainted with the defendant, from whom

Gunning purchased marijuana. Approximately six months before

3 Gunning testified pursuant to a cooperation agreement.

4

the killing, Gunning shared a photograph of the grow operation

with the defendant.

a. The defendant's scheme. The defendant became fixated

on the victim's grow operation. The defendant constantly

questioned Gunning about the victim, his house, and the grow

operation; he asked where the victim lived, when the marijuana

plants would be harvested, when the victim left his home, and

how many entrances the home had. Eventually, at the defendant's

insistence, Gunning drew a diagram of the home's floor plan,

including the location of the garage, from which the grow

operation could be accessed, and the location of each entryway

into the home.

The defendant shared a photograph of the victim's grow

operation with his childhood friend, Michael Cevoli, explaining

that the victim lived in "Humarock."4 The defendant remarked to

Cevoli, "If you grow pot, then it's fair game. Anyone can take

it," and described himself as a "pirate."

Several months before the victim's death, the defendant

also learned of the victim's firearm collection. In particular,

approximately two months before the victim's death, the

defendant asked Gunning whether the victim had a "crossbow,"

4 The jury heard testimony that the victim's home was

located in an area that "an outsider . . . could consider . . .

part of Humarock."

5

stating that he wanted the information "in case [he got] shot if

[he went] in there to get the pot." Gunning responded that the

victim had "tons of weapons." The defendant asked Gunning to

forward to him the photographs of the victim's firearms; Gunning

had previously sent the photographs to Brianne St. Peter, who

was also the defendant's friend. When Gunning did not send the

photographs, the defendant accessed Gunning's cellular

telephone, which had been left unattended during one of their

meetings, and forwarded the photographs to himself by text

message.5

Four days before the victim's death, the defendant

recruited Ferguson, his close friend and client,6 to join his

"master plan" to rob the victim's home. He assured Ferguson

that no one would get hurt.7

b. The robbery and killing. On the evening of September

15, 2015, Ferguson and O'Brien traveled from Boston in O'Brien's

5 Gunning also told the defendant about the African

artifacts and taxidermy displayed in the victim's house. The

defendant asked Ferguson's roommate, an auctioneer, whether he

had experience auctioning African art and masks. The auctioneer

replied that he did not.

6 The defendant was an attorney.

7 Like the defendant, Ferguson had grown up in Marshfield;

he lived in the Dorchester section of Boston with the

auctioneer, with whom the defendant had discussed African art,

see note 5, supra, and the auctioneer's fiancée.

6

sport utility vehicle (SUV), arriving in the southern end of

Marshfield a little after 11 P.M.8 Meanwhile, by approximately

9:30 P.M., the defendant, who lived in Quincy with his

girlfriend, Lauren Kalil, was at his mother's home in

Marshfield, where he remained until approximately 11:57 P.M.9

Between 12:02 A.M. and 12:47 A.M., on September 16, 2015,

the defendant, and inferably Ferguson and O'Brien, traveled in

the direction of the victim's home. Between 12:48 A.M.10 and

4:12 A.M.,11 the defendant's cellular telephone was turned off.

8 Ferguson called the defendant several times while en route

to Marshfield. His last call to the defendant was at 11:02 P.M.

Soon thereafter, Ferguson turned off his cellular telephone.

O'Brien had turned his cellular telephone off earlier, while he

and Ferguson were headed south to Marshfield.

9 After failing to reach the defendant for several hours

earlier that day, Kalil went to the defendant's mother's home.

She knocked on the door and saw that the lights were on inside,

but the defendant did not answer. Kalil called the defendant

"about [ninety] times" that evening to no avail.

Kalil testified pursuant to a cooperation agreement.

10Consistent with the defendant's arrival at the victim's

home, at around 1 A.M., the victim's next door neighbor (first

neighbor) awoke to the sound of glass breaking; the sound came

from the direction of the victim's house. A second neighbor,

who lived in the house directly across the street from the

victim, was also awakened at around the same time.

11Both neighbors were awakened again at around 3 A.M. The

first neighbor heard a loud crash followed by several popping

noises, the victim's dogs barking, and "three or four" men

arguing. Looking out her window, she saw in the victim's

driveway a dark-colored car that did not belong to the victim.

7

The jury were warranted in concluding that between these early

morning hours, the three coventurers entered the victim's home

and killed him.

c. Crime scene investigation. Approximately twelve hours

later, the victim's body was found, lying face-up on his kitchen

floor; the victim was barefoot, wore only boxer shorts, and was

covered in blood. The victim had a deep, gaping wound on his

right arm just below his armpit, as well as lacerations to his

head and cuts and bruises all over his body.

Responding officers noticed "dried blood almost everywhere"

in the home's interior. There was blood around the victim's

body, as well as on the kitchen counter and cabinets. On the

wall just outside the kitchen, there was an alarm keypad covered

in blood with the victim's bloody palm print.

The trail of blood continued into the open concept living

and dining room, where investigators observed blood on the couch

and a bloodstained newspaper. A torn, purple latex glove was

discovered on the dining room floor in an area with bloody shoe

She saw a man walk out of the victim's home, get into the car,

and drive away.

At around the same time, the second neighbor, also awakened

by dogs barking from the direction of the victim's house, looked

out his window; he heard a male voice and saw a man walking from

the victim's driveway toward the second neighbor's house. The

man was holding a bag. The second neighbor also heard a car

running at the nearby corner. Soon afterwards, the second

neighbor noticed a black car in the victim's driveway.

8

prints. Forensic analysis later detected the defendant's

deoxyribonucleic acid (DNA) on the glove's interior.

Blood also stained the walls and floor of the hallway

leading to the primary and guest bedrooms. The wall outside the

guest bedroom was dented. A rug in the hallway was twisted and

pushed against the wall, suggesting a struggle. It appeared

that the struggle continued inside the guest bedroom, where the

bed was detached from the headboard and askew from the wall.

The large glass window bore a gaping hole in the center, and

there were "dynamic" bloodstains12 below the window and larger

pools of blood on the floor, along with broken glass scattered

on the bedroom floor and outside on the patio.

In the primary bedroom, a metal frying pan splattered with

the victim's blood lay on the floor beside the doorway; one side

of the pan was dented. The bedroom floor was stained with

blood.

In the garage, a ladder was propped up, positioned to allow

access to the attic crawl space area where the victim's firearms

had been stored; the firearms were missing. In the basement,

the victim's marijuana plants had been harvested; investigators

recovered two bags of marijuana in the closet of the guest

12The Commonwealth's bloodstain pattern expert testified

that "dynamic" stains indicate that an outside force was applied

to the blood to create the resulting stain.

9

bedroom and more in the oven. Behind the garage lay a fanny

pack and a flashlight. The defendant and the victim were

potential DNA contributors to the flashlight. A black and gold

"Mechanix" brand glove was recovered a few houses away from the

victim's home; it contained the DNA of the defendant, Ferguson,

and the victim.

Police officers also recovered a left Nike Air Max sneaker

that was stained with the victim's blood on the side of Route 3A

in Marshfield, approximately two miles from the victim's home.

A more expansive search of the area yielded the matching right

Nike Air Max sneaker. The right sneaker was also stained with

the victim's blood and contained the defendant's wearer DNA as

the major contributor profile.

There were three distinct sets of shoe prints in the trails

of blood throughout the home and garage, as well as one set of

barefoot impressions that led through the hallway toward the

kitchen. The three distinct shoe prints appeared as (1) a "lug-

style" sneaker sole with a Nike brand "swoosh" in the toe area,

the word "Nike" in the heel area, and a block pattern along the

sides; (2) a sneaker sole with a concentric circular pattern in

the ball and heel areas; and (3) a sneaker sole with a zigzag or

lightning bolt pattern. Footprints of the first two shoe

patterns were found throughout the house, particularly in the

primary bedroom, kitchen, living and dining area, and garage; a

10

few impressions of the third pattern were also visible in the

hallway adjacent to the kitchen, living area, and garage. One

investigating officer diagrammed and analyzed the three distinct

sets of shoe prints from the crime scene and concluded that the

Nike Air Max sneakers recovered along Route 3A, one of which

contained the defendant's wearer DNA, matched the size, design,

and distinctive wearer characteristics of the lug-type sneaker

design with the Nike swoosh in the toe area and Nike name on the

heel the impressions of which were observed throughout the

victim's house, including in the primary bedroom, kitchen,

living and dining area, and garage.

Near the sneakers, officers also recovered a camouflage

jacket and shorts, each stained with the victim's blood; the

jacket and shorts were similar to ones worn by the defendant in

two photographs taken that summer. In addition, officers found

a blue long-sleeved T-shirt that was stained with the victim's

blood. The shirt had orange writing and was given to attendees

of a memorial golf tournament; records showed that the defendant

had purchased a ticket to the golf tournament in 2010.

Ferguson's wearer DNA was detected on the shirt.

d. Cause of death. The victim's autopsy report showed

that he sustained numerous blunt force injuries to the head,

torso, and upper and lower extremities. Notably, the victim

suffered three lacerations from blunt force trauma to the back

11

of his head, ranging in length from one and one-half to two and

one-quarter inches, and a fourth laceration to the left

forehead, measuring one and one-half inches. These wounds would

have caused profuse bleeding. The victim also suffered numerous

other bruises and abrasions to his forehead, eye, cheek, ear,

mouth, and jaw. These injuries were caused by a blunt object

consistent with the dented metal frying pan that was found in

the primary bedroom and stained with the victim's blood. The

victim additionally sustained numerous blunt force injuries to

the rest of his body, including his chest, abdomen, and back, as

well as multiple bruises and abrasions on his arms and legs.

Further, the victim had a gaping four and one-quarter inch

long and two-inch deep sharp force injury under his right armpit

area. This injury sliced through a major vein and artery and

would have caused a significant amount of blood loss. Without

medical intervention, it would have caused the victim to bleed

out within minutes. The jury were warranted in concluding that

this injury was caused when, following a struggle in the hallway

and inside the guest bedroom, the victim careened into the

bedroom window with sufficient force that his arm broke through

the glass. The medical examiner concluded that the victim died

12

due to exsanguination from the deep incision to his upper arm

and the multiple lacerations to his scalp.13

e. The aftermath. At around the time that the victim's

body was discovered, the defendant sent photographs of the

victim's firearm collection by text message to his friend, St.

Peter. St. Peter, to whom Gunning had previously sent

photographs of the victim's weapons, see discussion supra,

responded, "OMFG . . . BADASS . . . ," and asked the defendant

what he wanted for them. Later that afternoon, the defendant,

Ferguson, and O'Brien met at the defendant's Quincy home.

O'Brien had a large, fresh cut under his eye, and in O'Brien's

SUV lay a large, blue bag, inferably containing the firearms

stolen from the victim's home.

A few days later, Ferguson's cousin drove to the

defendant's Quincy home with St. Peter in a pickup truck

borrowed from St. Peter's husband, Shane McMahon. Arriving at

around midnight, Ferguson's cousin and St. Peter were greeted by

the defendant, who placed a large, heavy duffel bag in the bed

of McMahon's truck. The bag's landing in the truck bed sounded

like metal-on-metal; the defendant told Ferguson's cousin that

13A toxicology report showed the presence of drugs

including opioids, benzodiazepines, and marijuana in the

victim's blood; the medical examiner testified that the

substances did not cause the victim's death.

13

the bag contained weights for St. Peter's son. Later, McMahon14

found the bag in his truck; the bag had five long rifles

inside.15

f. The defendant's admissions and arrest. Meanwhile, the

defendant had a conversation about the now-publicized murder

with his friend, Cevoli, during which Cevoli remarked that

anyone who did something like that would get caught. The

defendant disagreed, saying, "[T]hey must have been stealth."

Responding to Cevoli's continued skepticism, the defendant

stated, "They must have been pretty smart . . . they're one step

ahead . . . I don't know . . . I don't think they'll get

caught."

Approximately one week after the victim's body was

discovered, Gunning learned of the victim's death. He

immediately called the defendant and asked whether the defendant

had killed the victim. The defendant did not answer Gunning's

accusation, responding only that it had been "the busiest week"

for crime in Marshfield.

When Kalil, the defendant's girlfriend, learned of

Ferguson's arrest and saw news reports about a discarded Nike

14 McMahon testified pursuant to a cooperation agreement.

15McMahon later discovered two plastic bags filled with

ammunition inside his work boots, which were also in the utility

box in the back of his truck.

14

Air Max sneaker, the defendant remarked to her that he "hoped he

didn't get caught up in it because he gave [Ferguson] his

sneakers" and "they were idiots that they threw stuff out on

3A." The defendant asked Kalil to throw away bags containing a

towel and cut-up clothing and to get rid of a stun gun; she

complied with the first request but not the second.16 At around

the same time, the defendant told Kalil that "he [felt] no pain"

because he almost "beat someone to death."

Shortly thereafter, investigators executed a search warrant

at the defendant and Kalil's home, finding two purple latex

gloves similar to the one found at the crime scene.17 Following

the search, the defendant berated Kalil for giving officers his

electronic tablet, stating that he now had to remotely "swipe

everything off it."

Kalil pressed the defendant about his involvement in the

victim's killing; after initially evading her questions, the

defendant eventually admitted that "they were going to get

marijuana, and shit hit the fan, and it wasn't supposed to

happen like that." The defendant also told Kalil that firearms

Kalil was charged as an accessory after the fact to

16

murder; after about four years, she pleaded guilty and entered

into a cooperation agreement. See note 9, supra.

Investigators then searched O'Brien's SUV and discovered

17

cleaning supplies and yellow and black Mechanix brand gloves in

the back. The driver's seat and seatbelt as well as the rear

driver's side seat screened positive for nonvisible blood.

15

in the back of O'Brien's SUV were intended for St. Peter, and

that he had instructed St. Peter not to register them because

they would be traced to the victim. Police officers later

recovered four rifles and one double-barreled shotgun from a

crawl space in St. Peter's mother's garage. One of the rifles

had the victim's blood on it, and the victim's brother

identified the firearms as belonging to the victim.

g. Defense. The defense, through cross-examination and

closing argument, focused on whether the prosecution had met its

burden of proof, highlighting gaps in the police investigation

and questioning the credibility of prosecution witnesses, many

of whom testified pursuant to cooperation agreements with the

government.

2. Prior proceedings. After a second jury trial,18 the

defendant was found guilty of murder in the first degree on the

theories of deliberate premeditation, extreme atrocity or

cruelty, and felony-murder. He was sentenced to life

imprisonment without the possibility of parole on the murder

conviction and to terms of from thirty to forty years on the

18 Following a first jury trial, the defendant was found

guilty on charges of burglary with assault on an occupant and

unarmed robbery, as well as five counts of larceny of a firearm.

The jury were unable to reach a unanimous verdict on the charge

of murder in the first degree, and the judge declared a mistrial

with respect to that charge. Sentencing was stayed pending the

second trial, over which the same judge presided.

16

burglary with assault on an occupant and unarmed robbery

convictions, to be served concurrently with the life sentence.

The judge also sentenced the defendant to terms of from four to

five years on the five larceny of a firearm counts, to be served

concurrently with the life sentence. The defendant timely

appealed.

3. Discussion. The defendant contends that the

Commonwealth failed to present sufficient evidence of deliberate

premeditation to support a conviction of murder in the first

degree under that theory, the trial judge erred in denying his

requests for instructions on involuntary manslaughter, the judge

improperly admitted multilevel hearsay under the joint venture

exclusion to the hearsay rule, and his conviction of burglary

with assault on an occupant is duplicative of his conviction of

murder in the first degree under the felony-murder theory. We

address each argument in turn.

a. Sufficiency of evidence. The defendant first

challenges the sufficiency of the evidence to support the

conviction of murder in the first degree under a theory of

deliberate premeditation. He rightly does not challenge the

sufficiency of the evidence supporting the conviction under the

theory of extreme atrocity or cruelty, or felony-murder. As

such, we need not address the defendant's challenge to one

theory of murder in the first degree. See Commonwealth v. Cheng

17

Sun, 490 Mass. 196, 201 (2022) ("this court has, at times,

declined to evaluate the sufficiency of the evidence as to one

theory of murder where the jury convicted a defendant on two

theories"). See, e.g., Commonwealth v. Barbosa, 463 Mass. 116,

135 (2012) (declining to address claim of insufficiency of

evidence on theory of extreme atrocity or cruelty where jury

also convicted defendant on theory of deliberate premeditation).

b. Involuntary manslaughter instruction. The defendant

next asserts that the judge erred in declining to instruct the

jury on involuntary manslaughter.

i. Standard of review. Because the defendant requested an

involuntary manslaughter instruction, we review the trial

judge's decision not to provide the instruction for prejudicial

error. See Commonwealth v. Escobar, 493 Mass. 694, 708 (2024).

"It is well established that if, in a murder prosecution, the

jury would be warranted in finding the defendant guilty of

manslaughter, rather than murder, it is reversible error not to

give an instruction on manslaughter." Commonwealth v. Chase,

433 Mass. 293, 298 (2001), quoting Commonwealth v. Martinez, 393

Mass. 612, 613 (1985).

"An involuntary manslaughter instruction is required where

'any view of the evidence will permit a finding of manslaughter

and not murder.'" Commonwealth v. Tyler, 493 Mass. 752, 760

(2024), quoting Commonwealth v. Jessup, 471 Mass. 121, 135

18

(2015). In determining whether an involuntary manslaughter

instruction is warranted, "the evidence must be viewed in the

light most favorable to the defendant" (citation omitted).

Escobar, 493 Mass. at 708.

Relevant to the defendant's claim on appeal, "[i]nvoluntary

manslaughter arises 'where wanton [or] reckless conduct causes

death.'" Commonwealth v. O'Brien, 494 Mass. 288, 297 (2024),

quoting Commonwealth v. Simpson, 434 Mass. 570, 590 (2001).

"Such wanton or reckless conduct is 'intentional conduct that

create[s] a high degree of likelihood that substantial harm will

result to another person.'" O'Brien, supra, quoting

Commonwealth v. Pagan, 471 Mass. 537, 547, cert. denied, 577

U.S. 1013 (2015). See, e.g., Commonwealth v. Welansky, 316

Mass. 383, 387, 397 (1944) (nightclub owner guilty of

manslaughter in deadly fire resulting from wanton or reckless

management of club, despite being absent at time of fire).

"[I]n all cases . . . [the court] must look at the conduct that

caused the result to determine whether it was wanton or

reckless, not the resultant harm." Commonwealth v. Hardy, 482

Mass. 416, 424 (2019).

"Murder, by contrast, requires a showing of malice."

O'Brien, 494 Mass. at 298, citing Pagan, 471 Mass. at 546. To

convict a defendant of murder in the first degree on the theory

of deliberate premeditation, malice "requires the Commonwealth

19

to prove that the defendant consciously and purposefully

intended to cause the victim's death" (quotation and citation

omitted). Commonwealth v. Santana-Rodriguez, 496 Mass. 693, 697

(2025). For murder in the first degree on the other theories,

malice may be proven by showing that the defendant (1) intended

to kill the victim; (2) intended to cause grievous bodily harm

to the victim; or (3) intended to do an act that, in the

circumstances known to the defendant, a reasonable person would

have known created a plain and strong likelihood of death. Id.

at 697 n.3. See Commonwealth v. Castillo, 485 Mass. 852, 858

(2020), citing Commonwealth v. Szlachta, 463 Mass. 37, 45-46

(2012). "The difference between the elements of the third prong

of malice" -- commission of an act that, in the circumstances

known to the defendant, a reasonable person would have known

created a plain and strong likelihood of death -- "and . . .

involuntary manslaughter lies in the degree of risk of physical

harm that a reasonable person would recognize was created by

particular conduct, based on what the defendant knew."19

19For trials commencing after this court's decision in

Commonwealth v. Brown, 477 Mass. 805 (2017), cert. denied, 586

U.S. 826 (2018), "the Commonwealth must prove malice to obtain a

murder conviction" on the theory of felony-murder. O'Brien, 494

Mass. at 297 n.10, citing Brown, supra at 807. The defendant's

first trial began on April 1, 2019.

20

O'Brien, supra, quoting Commonwealth v. Sires, 413 Mass. 292,

303 n.14 (1992).

ii. Risk of death. "Where, as here, the severity of a

beating is such that 'it is obvious that the risk of physical

harm to the victim creates a plain and strong likelihood that

death would follow . . . an instruction on involuntary

manslaughter [is] not warranted.'" O'Brien, 494 Mass. at 298,

quoting Commonwealth v. Burnham, 451 Mass. 517, 527 (2008).

See, e.g., Commonwealth v. Moseley, 483 Mass. 295, 303-304

(2019) ("obvious risk of physical harm associated with"

strangling victim rendered involuntary manslaughter

unavailable). "In other words, [an involuntary manslaughter

instruction is not warranted where] the 'circumstances of the

killing and injuries sustained by the victim' may be

'[in]consistent with anything other than [a finding of]

malice.'" O'Brien, supra at 298-299, quoting Commonwealth v.

Silva, 471 Mass. 610, 621-622 (2015) (involuntary manslaughter

instruction not warranted where defendant and coventurer

severely beat victim, knocked him down, kicked him, and stomped

on his chest causing victim's eyes to "bug out").

21

In the case of one of the defendant's coventurers, we

summarized the evidence as follows:20

"[T]he victim suffered multiple blows to the front of his

head, his torso, and his extremities. The beating also

included repeated strikes to the back of his head with a

frying pan with such ferocity that the pan deformed, and

the chaotic carnage of the blood-drenched crime scene

indicated a prolonged and violent struggle. These

circumstances of the victim's death, and the injuries he

sustained, are inconsistent with a finding of . . . mere

wanton or reckless conduct likely to cause substantial harm

short of death."21

O'Brien, 494 Mass. at 299. See, e.g., Commonwealth v. Nichypor,

419 Mass. 209, 217 (1994) ("The risk of harm associated with

stabbing a person in the head with knives and slashing a

person's throat with a razor blade is the kind of risk that

could only lead to a determination of malice").

20In O'Brien, 494 Mass. at 296-297, one of the defendant's

coventurers raised an ineffective assistance of counsel claim

predicated on his counsel's decision to withdraw a request for

an involuntary manslaughter instruction. In assessing the

coventurer's claim, we determined that an involuntary

manslaughter jury instruction was not warranted by the record

evidence. Id. at 298-299.

21The defendant suggests that evidence of malice was

lacking because, although "firearms and knives were readily

available" to the coventurers, they chose a frying pan, "an

opportunistic weapon which is not dangerous per se." "[I]tems

that are not dangerous weapons per se may, however, qualify as

dangerous weapons as used." Commonwealth v. Keown, 478 Mass.

232, 249-250 (2017), cert. denied, 583 U.S. 1139 (2018). See,

e.g., Commonwealth v. Gebo, 489 Mass. 757, 773-774 (2022)

(plastic chair). Here, the jury were warranted in concluding

that the use of the frying pan to assault the victim rendered it

a dangerous weapon.

22

To be sure, the jury could have inferred that the

defendant, although present during the extensive, prolonged

beating of the victim, did not himself strike the victim. Such

an inference, however, does not support an involuntary

manslaughter instruction in view of the overwhelming evidence,

detailed supra, of the defendant's participation in the murder

as a joint venturer.22 See O'Brien, 494 Mass. at 299-300

(evidence "fails to support a theory that . . . the defendant

. . . merely was present inside the victim's home but was

unaware of, and not complicit with, the repeated and brutal

assaults on the victim as he moved from room to room around the

house, spurting blood from his extensive wounds"). See also

Commonwealth v. Semedo, 422 Mass. 716, 718-719 (1996) (defendant

guilty of murder in first degree where he participated in fatal

group attack on victim in which defendant held, kicked, and

punched victim while another stabbed him, even if defendant did

not inflict fatal blow or hold murder weapon).

The defendant contends that, unlike his coventurer, he was

entitled to an involuntary manslaughter instruction because, as

22Murder in the first degree by joint venture requires

proof that "the defendant was present at the scene of the crime,

with knowledge that another intended to commit a crime, and by

agreement was willing and available to help the other if

necessary," and "that the defendant shared with the principal

the mental state required for the crime of murder."

Commonwealth v. Semedo, 422 Mass. 716, 719 (1996).

23

the mastermind of the robbery scheme, the jury could find that

he was singularly focused on obtaining the marijuana from the

victim's grow operation as well as the firearm collection, both

of which were away from the main house and accessed by the

garage. Thus, he maintains, the jury would be warranted in

finding that he was not in the main house during the violent,

extensive attack on the victim by the coventurers, but that he

merely was wanton or reckless in developing the planned robbery

pursuant to which the coventurers were to distract the victim,

who they knew had access to firearms.

As the trial judge explained when declining to give the

sought instruction, this theory rests on speculation, requiring

the jury to ignore the physical and forensic evidence showing

the defendant's presence in the main house alongside his

coventurers as they pummeled the victim.23 The evidence

included, inter alia, a torn, purple latex glove containing the

defendant's DNA, which was found in the victim's dining room.

Sneakers found in the flight path from the victim's home were

23The defendant's reliance on Commonwealth v. Malone, 100

Mass. App. Ct. 399 (2021), and Welansky, 316 Mass. at 399, is

misplaced. The defendant's actions were not limited to

"planning and implementing the robbery of a drug dealer,"

Malone, supra at 407 n.13, or "indifference to or disregard of

probable consequences," Welansky, supra; rather, the evidence

shows the defendant's extensive role in the joint venture from,

inter alia, planning the robbery, recruiting Ferguson, executing

the plan, assisting in the cover-up, and disposing of the stolen

goods.

24

splattered with the victim's blood, and one contained the

defendant's wearer DNA; these same shoes were tied to one of the

three sets of shoeprints found alongside the impressions of the

victim's bare feet throughout the victim's home, including the

dining and living area, the hallway leading to the bedrooms, the

kitchen where the victim's body was found in a pool of blood,

and the master bedroom where the frying pan was recovered. The

shoeprints were not confined to the garage, basement, or attic.24

24Because the sequencing of the shoeprints is unknown, the

defendant argues that the jury could have inferred that the Nike

Air Max shoeprints were placed after the violence occurred.

Similarly, at trial, defense counsel posited that the defendant

may have come to the crime scene after the killing in response

to a call for assistance from Ferguson; the defendant presses

this argument on appeal. But these accounts fail to address

that the defendant's shoeprints were found together with the

shoeprints of two others (presumably the coventurers) and near

the victim's barefoot impressions. The sets of shoeprints

permeated the house, as discussed supra, which, together with

the other physical and forensic evidence showing a prolonged

brutal attack on the victim, fail to support a theory that the

defendant entered the house only after the killing, or only to

check on the victim's body as it lay on the kitchen floor

following the victim's death.

Moreover, the theory finds no support in the extensive

evidence of the defendant's role in planning the robbery,

including inquiring whether the victim might be armed, in the

plan's execution, and in possessing and disposing of the

victim's firearm collection thereafter. The defendant's other

theories -- including that his DNA was at or near the scene

because he lent his clothing to others, including his sneakers,

golf tournament shirt, camouflage print outfit, and Mechanix

brand gloves -- were implausible given the extensive evidence

of, inter alia, his role in planning the robbery and in

transferring the victim's firearms to St. Peter. See

Commonwealth v. Egerton, 396 Mass. 499, 505 (1986) ("The judge

25

The defendant's DNA, together with the victim's DNA, was

found on the flashlight behind the victim's garage. Further,

the glove recovered a few houses away from the victim's home

contained the DNA of the defendant, Ferguson, and the victim.

The defendant's theory that his coventurers alone interacted

with the victim ignores this evidence, as well as the evidence

that the attack on the victim was prolonged and brutal.

Moreover, the evidence showed that, after the killing, the

defendant continued his participation in the joint venture. The

defendant met with Ferguson and O'Brien to obtain the stolen

firearms from O'Brien's SUV and sent photographs of the firearms

to St. Peter. When St. Peter expressed an interest in the

firearms, the defendant met with her and placed a heavy bag in

her husband's truck that later was found to contain the victim's

firearms. See Commonwealth v. Eagles, 491 Mass. 210, 218-219

(2023) (evidence of defendant's liability on joint venture

theory of felony-murder sufficient even if jury credited

defendant's testimony that he served only as lookout, where

defendant continued to participate in robbery after entering

trailer where victim was killed). In short, the defendant's

need not reconstruct all possible factual scenarios subsumed in

the evidence presented, no matter how unreasonable, and charge

the jury accordingly"); Commonwealth v. Lee, 383 Mass. 507, 514

(1981) ("A judge is not required to charge on situations which

are merely speculative and unsupported by the evidence").

26

theory that he was neither present while his coventurers

repeatedly beat the victim over a prolonged period of time, nor

complicit therein, rests on speculation unsupported by the

evidence. See Commonwealth v. Garcia, 482 Mass. 408, 411 (2019)

("The defendant's theory of events is entirely speculative,"

because "[t]he evidence provides no detail about the victim's

supposed attack against the defendant," and "a judge should not

instruct the jury on a hypothesis not supported by the evidence"

[quotations and citations omitted]).

Alternatively, the defendant asserts that -- even if the

jury were to find that he was present during the prolonged

violent attack on the victim -- an involuntary manslaughter

instruction was warranted because the jury could infer that the

severe beating of the victim with the frying pan was wanton or

reckless conduct that created an "immediate sense of danger,"

causing the victim to attempt to flee by breaking through the

guest bedroom window and severing the artery in his arm, which

eventually led to his death. As discussed supra, the use of the

frying pan to strike the victim repeatedly on the front of his

head, the back of his head, his torso, and his extremities is

inconsistent with a finding other than that the defendant acted

with, at the least, third prong malice; a reasonable person

would understand that beating the victim with such ferocity as

to deform the metal frying pan created a plain and strong

27

likelihood that death would follow.25 In sum, the judge did not

err in declining to give an involuntary manslaughter

instruction.

c. Hearsay. The defendant next maintains that the trial

judge erred in allowing Audra Romani,26 Ferguson's girlfriend, to

testify that, in the days before the killing, Ferguson told her

that the defendant had developed a plan whereby the defendant,

Ferguson, and possibly another person would rob a wealthy man in

Marshfield.27 The defendant contends that Romani's testimony

25Contrary to the defendant's argument, the record does not

support mere wanton or reckless conduct, by setting in motion a

series of responsive acts by the victim or his environment that

eventually caused death. Contrast Commonwealth v. Jenner, 24

Mass. App. Ct. 763, 771-775 (1987) (sufficient evidence for

involuntary manslaughter conviction where defendant chased,

jumped on, and robbed elderly victim, leaving victim in snow,

where he died from exposure or asphyxiation); Commonwealth v.

Joyce, 18 Mass. App. Ct. 417, 419-421 (1984) (upholding

conviction of involuntary manslaughter where defendants chased

victim into subway station while showering subway platform with

rocks and bottles, and victim, fearing for his life, jumped onto

subway tracks and was hit and killed by subway train). Nor does

it support the defendant's theory that the victim's arm

accidentally broke through the double paned glass window due to

the victim's disorientation following ingestion of drugs.

26Romani testified at the defendant's second trial pursuant

to a grant of immunity.

27The defendant made these remarks to Ferguson during a

telephone call that Ferguson took in Romani's presence, but

which Romani did not overhear. Specifically, Romani testified

that Ferguson told her "[t]hat there was a plan . . . to rob a

man from Marshfield with a lot of money," that the defendant

devised the plan, and that two or three people would be

participating in the plan.

28

constituted inadmissible multilevel hearsay because even if the

first level of out-of-court statements -- the defendant's

statements to Ferguson -- were admissible, the second level of

out-of-court statements -- Ferguson's statements to Romani

relaying what the defendant told him –- were inadmissible

hearsay not within any exception to the rule prohibiting the

admission of hearsay.

i. Standard of review. "We review evidentiary decisions

of the trial judge for an abuse of discretion." Commonwealth v.

Da Lin Huang, 489 Mass. 162, 172 (2022). In doing so, we

evaluate whether "the judge made a clear error of judgment in

weighing the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

If we determine that the admission comprised an abuse of

discretion, then where, as here, the objection was preserved, we

next consider whether the defendant was prejudiced. See

Commonwealth v. Rakes, 478 Mass. 22, 37 (2017) (where error

preserved by timely objection, "[w]e review the judge's decision

to place a joint venturer's statement before the jury for

[prejudicial error resulting from an] abuse of discretion"). We

consider "whether there is a reasonable possibility that the

error might have contributed to the jury's verdict" (citation

29

omitted). Commonwealth v. Carriere, 470 Mass. 1, 7 (2014).

Reversal is warranted unless we can conclude with fair

assurance, after pondering the totality of what transpired,

including the erroneously admitted evidence, that the error "did

not influence the jury, or had but very slight effect" (citation

omitted). Id. at 8. See Commonwealth v. Flebotte, 417 Mass.

348, 353 (1994).

ii. Multilevel hearsay. In general, where a witness

testifies to an out-of-court statement based on a chain of out-

of-court statements, the testimony is admissible only if each

out-of-court assertion in the chain is admissible. See

Commonwealth v. Rivera, 482 Mass. 259, 268 (2019). See

generally Mass. G. Evid. § 805 (2025).

A. First level: statement of party opponent. As the

Commonwealth contends, the first set of out-of-court statements

-- namely, the defendant's statements to Ferguson -- were

admissible as statements of a party opponent. See Commonwealth

v. Hobbs, 482 Mass. 538, 558 (2019); Commonwealth v. Bright, 463

Mass. 421, 426 n.8 (2012). See generally Mass. G. Evid.

§ 801(d)(2)(A).

B. Second level: statement of joint venturer. The

Commonwealth maintains that the second set of out-of-court

statements -- namely, Ferguson's statements to Romani -- were

30

not hearsay because they were statements of a joint venturer

made in furtherance of the joint venture. We disagree.

"Out-of-court statements by joint venturers are admissible

against the others if the statements are made during the

pendency of the criminal enterprise and in furtherance of it."28

Commonwealth v. Winquist, 474 Mass. 517, 520–521 (2016), quoting

Carriere, 470 Mass. at 8. To admit a coventurer's out-of-court

statement, the trial judge must first make "a preliminary

determination, based on a preponderance of admissible evidence

other than the out-of-court statements themselves, that a

criminal joint venture existed between the declarant and the

defendant, and that the statement was made in furtherance of the

venture." Bright, 463 Mass. at 426. See generally Mass. G.

Evid. § 801(d)(2)(E). This preliminary determination permits

the statement to be placed in front of the jury, which must then

make an independent determination, again based on a

28Such joint venturer statements are deemed not to be

hearsay; the rationale for the rule "derives from an analogy

between a criminal venture and a lawful partnership: each

venturer is treated as an 'agent for the other in all matters

relating to the common object, and the acts and declarations of

one in furtherance of such object are admissible to affect the

principal as well as the agent'" (citation omitted). Bright,

463 Mass. at 426. Joint venturer statements are considered

sufficiently reliable to be admitted in evidence due to "[t]he

community of activities and interests which exists among the

coventurers during the enterprise." Commonwealth v. White, 370

Mass. 703, 712 (1976).

31

preponderance of the evidence other than the statement itself,

that a joint venture existed and that the statement was made in

furtherance of that joint venture. Bright, supra at 427.

The admissibility of Romani's testimony turns on whether

the record supports the trial judge's finding by a preponderance

of the evidence that Ferguson made the statements in furtherance

of the joint venture.29 "We have expressed skepticism that

disclosure of the circumstances of the crime to a third party

can be considered as furthering an effort to conceal the very

crime disclosed." Bright, 463 Mass. at 436 n.21. See id. at

433 n.16, quoting Commonwealth v. Bongarzone, 390 Mass. 326, 340

n.11 (1983) ("'[c]onfessions or admissions of conspirators or

joint venturers' to strangers or third parties unsympathetic to

the goals of the venture 'are not admissible . . . as vicarious

statements of the other members of the conspiracy or joint

venture'").

For example, in Commonwealth v. Stewart, 454 Mass. 527,

529, 537 (2009), we concluded that a coventurer's statement to

an ostensibly sympathetic third party -- an individual with whom

29The trial judge did not abuse his discretion in finding

by a preponderance of the evidence that a joint venture between

Ferguson and the defendant existed. See Bright, 463 Mass. at

435 ("view[ing] the evidence presented to support the existence

of a joint venture 'in the light most favorable to the

Commonwealth,'" and concluding there was "ample evidence" to

support joint venture's existence [citation omitted]).

32

the coventurer had committed other crimes -- that he had

murdered the victim was inadmissible because the statement did

not "conceal the crime," but rather achieved "the opposite":

"[i]t revealed the crime to someone who was not a member of the

joint venture." Here, as in Stewart, a coventurer revealed

incriminating information to an ostensibly sympathetic third

party, his girlfriend, and the statements did not conceal the

crime; instead, the statements revealed incriminating

information to a person outside the joint venture.

The Commonwealth asserts that the statements fall under the

joint venture exemption because Ferguson's statements were made

to enlist Romani, a trusted audience, in the future concealment

of the crime once it was eventually executed. But, unlike the

cases relied on by the Commonwealth, nothing in the record

supports the conclusion that Ferguson revealed details of the

planned crime to encourage Romani's silence.30 Contrast

30The Commonwealth's reliance on Commonwealth v. Wilkerson,

486 Mass. 159 (2020), is misplaced. In Wilkerson, the

defendant's girlfriend testified to the statements the

coventurer made to the defendant in her presence, the statements

she overheard the defendant make during a telephone call with

the coventurer, and the defendant's statements to the girlfriend

regarding his indecision whether to join the joint venture. Id.

at 174. Recognizing that coventurer's statements ordinarily

must be made during an existing joint venture, we concluded that

admission of her testimony was not an abuse of discretion

because the coventurer's statements were "made in furtherance of

a joint venture that formed thereafter," id. at 175-176; the

coventurer's statements tended to show that he was trying to

33

Commonwealth v. Chalue, 486 Mass. 847, 851, 873-874, 875 (2021)

(coventurer's statements to friends, one of whom helped wash

vehicle likely used during murders, permitted coventurer to use

her cellular telephone after murders, agreed to delete call log

and conceal coventurer's use, and provided misinformation to

police at coventurer's request, properly admitted because

coventurer "was trying to enlist [friends'] loyalty by giving

them enough information that they would feel complicit in the

crimes and, therefore, not speak up"); Commonwealth v. Wood, 469

Mass. 266, 271-272, 280-281 (2014) (joint venture exemption

applied to coventurer's statements disclosing graphic details of

murder to girlfriend immediately following crime where

girlfriend witnessed one victim's kidnapping, coventurers

returned to girlfriend's apartment to dispose of their bloody

clothing following murder, and coventurer made statements while

girlfriend was vulnerable to frighten her into silence); id. at

273 n.13, 280-281 (joint venture exemption also applied to

coventurer's later disclosures to girlfriend, "one of only two

recruit the defendant, id. at 175. Contrary to the

Commonwealth's argument, we did not conclude that the

girlfriend's testimony was proper because she was a "trusted

audience" for the coventurer and the defendant; her testimony

was permissible because she witnessed the conversation

firsthand. In short, her testimony did not involve multilevel

hearsay. Id. at 174 ("According to [girlfriend], [coventurer]

came to the house she shared with the defendant and told the

defendant" information intended to recruit defendant in crime).

34

people who could implicate [coventurer] in the murder," where

coventurer threatened to harm girlfriend's children, coventurer

told girlfriend to lie to police, and girlfriend did so).31

Moreover, neither the statements themselves -- that the

defendant had developed a plan to rob the victim -- nor the

circumstances in which they were made -- at an informal

gathering with other friends -- suggest that Ferguson was

enlisting Romani in the joint venture. Contrast Commonwealth v.

Steadman, 489 Mass. 372, 376, 380 (2022) (no abuse of discretion

to allow coventurer's former mother-in-law to testify to

coventurer's statement, "I think [defendant's] in trouble," made

after coventurer asked to use her laundry "with bloody shirt in

hand and with the defendant washing himself of blood outside

[her home, because jury could find statement] was an attempt to

enlist [mother-in-law's] aid in concealing the crime"); Chalue,

486 Mass. at 875 (coventurer "was washing [with friend's

assistance] one of the cars likely used in the crimes --

31That Romani initially denied any knowledge of the crime

does not support the theory that, at the time Ferguson made the

statements to her, he was enlisting her assistance in a cover-

up. Contrast Chalue, 486 Mass. at 875 ("Commonwealth's theory

that [by making challenged statements, coventurer] was trying to

implicate [friends] in furtherance of the plot" supported by

content and context of coventurer's statements, and

"buttress[ed]" by fact that coventurer later instructed one

friend to tell police that third person committed murders, and

friend did so).

35

presumably in an attempt to conceal evidence -- moments before

making the statements" to that friend and another).

iii. Prejudice. The defendant argues that he was

prejudiced by the improper admission because the prosecution

emphasized Romani's testimony that the defendant devised the

"master plan" to rob the victim, undermining his defense that

Ferguson executed the botched robbery and that the defendant was

called to the scene only after the fact. We disagree.

The evidence that the defendant was the mastermind of the

robbery was overwhelming. See Commonwealth v. Braley, 449 Mass.

316, 326 (2007) (error in admitting hearsay statement not

prejudicial where statement was cumulative of "overwhelming

other evidence" that defendant and coventurer participated in

crime). Gunning, for example, testified that the defendant

became obsessed with the victim's marijuana grow operation and

requested a diagram of the victim's home; Gunning also testified

to the defendant's fixation on the victim's firearm collection,

including his inquiry into whether the victim had weapons "in

case [the defendant] get[s] shot if [he] go[es] in there to get

the pot" and the defendant's act of sending Gunning's

photographs of the firearms to himself when Gunning failed to do

so. Cevoli similarly testified that the defendant showed him a

photograph of the marijuana grow operation in "Humarock," and

remarked, "If you grow pot, then it's fair game. Anyone can

36

take it." Kalil further testified that the defendant told her

after the murder that the plan was to "get marijuana" but that

things went awry and "it wasn't supposed to happen like that."

And, as discussed supra, the jury were presented with

substantial physical and forensic evidence linking the defendant

to the crime.

Moreover, the defendant was able to elicit helpful

testimony from Romani, revealing that the defendant's scheme, if

executed as planned, was to involve no injuries to the victim.32

We therefore conclude "with fair assurance" that the jury in

this case were "not substantially swayed by the error" (citation

omitted). Hobbs, 482 Mass. at 559-560 (concluding that

testimony at issue constituted multilevel hearsay, but finding

no prejudice because improper testimony was cumulative of other

evidence).

d. Duplicative convictions. The defendant next contends

that his conviction of burglary with assault on an occupant is

32On cross-examination and redirect, Romani confirmed her

grand jury testimony that Ferguson told her "that the plan was

that somebody would go in and distract [the victim] while

somebody else took his stuff, and nobody would get hurt," and

that the defendant devised the "master plan . . . to make fast

money" with "no one getting hurt." In fact, in closing, defense

counsel emphasized Romani's testimony that "[n]obody was

supposed to get hurt" to suggest that the defendant lacked

intent to kill.

37

duplicative of his conviction of murder in the first degree

under the felony-murder theory. The defendant's claim fails,

however; "where . . . a defendant is convicted of murder in the

first degree on a theory of felony-murder . . . and [also] is

convicted of murder in the first degree on another theory

. . . , the conviction of the predicate felony is not

duplicative, and the felony conviction stands." Commonwealth v.

Foster, 471 Mass. 236, 244 (2015).

e. General Laws c. 278, § 33E, review. Having reviewed

the entire record, we discern no basis to grant relief under

G. L. c. 278, § 33E.

4. Conclusion. For the reasons discussed, the judgment

convicting the defendant of murder in the first degree and the

remaining judgments are affirmed.

So ordered.