KAREN BALCHUNAS & Another v. THOMAS FARDY.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-339

KAREN BALCHUNAS & another1

vs.

THOMAS FARDY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Thomas Fardy, appeals from a Superior Court

jury verdict awarding the plaintiffs, Karen Balchunas and Marisa

Brown, damages for civil assault and battery and intentional

infliction of emotional distress. The defendant argues that the

trial judge abused his discretion by admitting two photographs

and an audio recording into evidence. We affirm.

Background. Balchunas and the defendant lived together as

domestic partners for approximately thirty years. Brown is

Balchunas's adult daughter. On September 9, 2014, the defendant

physically attacked and strangled Balchunas. Two days later,

when the defendant again began behaving aggressively, Balchunas

1 Marisa Brown.

called Brown to come to her home. Shortly after Brown arrived,

she saw the defendant "grab[] a full bottle of wine and slam the

fridge." Brown and Balchunas went into an office area at the

back of the house to get away from the defendant. When the

defendant entered the office about ten minutes later, Brown

picked up Balchunas's cell phone, held it up to the defendant,

pushed a button on the side of the phone, and told the defendant

she would call 911 if he did not go back to bed and leave them

alone. The defendant then strangled Brown, putting his hands

around her throat. He also punched Balchunas in the face

multiple times when she tried to intervene. The plaintiffs ran

out of the house and called the police, who arrested the

defendant.2 About three and a half years later, the plaintiffs

discovered that when Brown pushed the button on the side of

Balchunas's cell phone, she accidentally created an audio

recording of the incident.

Discussion. 1. Standard of review. We review a judge's

evidentiary rulings for an abuse of discretion. See Luppold v.

Hanlon, 495 Mass. 148, 154-155 (2025). An abuse of discretion

occurs "where we conclude the judge made a clear error of

judgment in weighing the factors relevant to the decision such

2 The defendant admitted to sufficient facts in the District

Court on criminal charges of strangulation, assault and battery

on a family or household member, and assault and battery.

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that the decision falls outside the range of reasonable

alternatives." Id., quoting L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014).

2. Admission of the photographs. The defendant asserts

that the trial judge abused his discretion by admitting

photographs of Balchunas's injuries, because a prior judge

(motion judge) ordered exclusion from trial of any evidence that

had not been produced as of the date of her order, March 14,

2019. We disagree.

About three months after the motion judge's order, in June

2019, Balchunas brought the photographs to her deposition. The

plaintiffs had not provided the photographs to the defendant

prior to the motion judge's order, however, they were utilized

and discussed during Balchunas's deposition testimony. Shortly

before the trial began, the trial judge denied the defendant's

motion in limine to exclude the photographs. They were entered

into evidence during the trial.

A trial judge is free to alter a pretrial ruling in the

exercise of sound judicial discretion. See Commonwealth v.

Gonzalez, 22 Mass. App. Ct. 274, 277 n.5 (1986); see also

Commonwealth v. Gross, 447 Mass. 691, 693 n.2 (2006) (judge

retains authority to reconsider question of fact or law even

once previous judge has decided it). Although a "judge should

hesitate before undoing the work of another judge," see Herbert

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A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 401

(2003), ultimately it is the trial judge's function as

gatekeeper to determine what evidence fairly can be presented to

the jury. Here, the defendant moved to exclude the photographs

prior to trial and objected when they were offered at trial on

the ground that their admission violated the motion judge's

order. The trial judge denied the pretrial motion and overruled

the defendant's trial objection based on his finding that the

plaintiffs disclosed the photographs by June 2019, about four

years prior to trial. The defendant argues that he lacked

notice that the photographs would be admitted into evidence,

because he relied on the motion judge's order. We agree with

the trial judge's implicit reasoning that there was no prejudice

where the defendant knew about the photographs for at least four

years at the time of trial and therefore had ample time to

prepare for any issues they might present. In any event, the

decision to alter the motion judge's ruling and permit the

photographs to be admitted into evidence at trial was well

within the trial judge's discretion. See Gonzalez, supra.

3. Admission of the recording. The defendant also argues

that the trial judge abused his discretion in admitting the

audio recording and committed criminal violations of G. L.

c. 272, § 99, the statute proscribing wiretapping (wiretap

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statute), by playing the recording in the courtroom. We

disagree.

The defendant does not challenge the plaintiffs'

representation that Brown created the recording accidentally.

However, he contends that an accidental recording can still be a

secret recording, and therefore an "interception" within the

meaning of the wiretap statute. The defendant then argues that

G. L. c. 272, § 99 (C) (3), which categorizes willfully using a

recording made through interception as a misdemeanor, applied

here and mandated that the trial judge exclude the recording.

We conclude that based on the trial judge's uncontested

finding that the recording was not willful, the wiretap

statute's proscriptions do not apply. See G. L. c. 272, § 99.

The defendant provides no case law in support of his contention

that an accidental recording, of which no party was aware at the

time, is an unlawful, "secret" recording within the meaning of

G. L. c. 272, § 99. The two cases cited by the defendant, Pine

v. Rust, 404 Mass. 411, 413-414 (1989), and Vita v. New England

Baptist Hosp., 494 Mass. 824, 825, 835 (2024), offer no support

for his argument, as they involve a defendant intentionally

hiding a tape recorder in her purse and a defendant

intentionally tracking a web user's browsing data, respectively.

Even if we accepted the defendant's assertion that the recording

was an "interception," the wiretap statute provides suppression

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as a remedy only for "defendant[s] in a criminal trial." G. L.

c. 272, § 99 (P); see Commonwealth v. Rainey, 491 Mass. 632,

638-639 (2023) (wiretap exclusionary rule not applicable to

probation proceedings because they are not criminal trials).

While the statute creates a private right of action as a

potential remedy, it makes no mention of exclusion in a civil

trial. See G. L. c. 272, § 99. Furthermore, even in those

criminal cases where the wiretap statute's suppression provision

applies and gives a defendant standing to move to suppress,

exclusion of an interception is not required. See Commonwealth

v. Santoro, 406 Mass. 421, 423 (1990) (judge has discretion not

to suppress unlawful interceptions, such as where no deterrent

purpose would be served by exclusion). Because the wiretap

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statute did not require the judge to exclude the recording, he

did not abuse his discretion by admitting it as evidence at the

trial.3

Judgments affirmed.

By the Court (Desmond,

Hershfang & Brennan, JJ.4),

Clerk

Entered: May 5, 2026.

3 The plaintiffs' request for attorney's fees incurred in

defending this appeal is denied. Mass. R. A. P. 25, as

appearing in 481 Mass. 1654 (2019).

4 The panelists are listed in order of seniority.

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