NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; [email protected]
24-P-1472 Appeals Court
COMMONWEALTH vs. FREDERICK PINNEY.
No. 24-P-1472.
Hampden. April 3, 2026. – September 2, 2026.
Present: Grant, Walsh, & Brennan, JJ.
Homicide. Constitutional Law, Confrontation of witnesses.
Practice, Criminal, Required finding, Confrontation of
witnesses, Motion to suppress, Instructions to jury.
Evidence, Buccal swab. Deoxyribonucleic Acid.
Indictment found and returned in the Superior Court Department on April 29, 2014.
A pretrial motion to suppress evidence was heard by Edward J. McDonough, Jr., and the case was tried before Michael K. Callan, J.
Luke Rosseel for the defendant.
William Thomas Joyce, Assistant District Attorney, for the Commonwealth.
WALSH, J. On March 23, 2014, TayClair Moore was found
deceased in the defendant's bedroom. The defendant was arrested
shortly thereafter and charged with murder in the first degree.
His first trial ended in a mistrial, and he was convicted of
2
involuntary manslaughter after a second trial. The defendant
now appeals from that conviction, asserting, among other things,
that his confrontation rights under the Sixth Amendment to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights were violated by the admission of opinions
from substitute analysts whose testimony heavily relied on the
report of an absent analyst, concerning deoxyribonucleic acid
(DNA) testing on evidence recovered from the scene. The
Commonwealth concedes, and we agree, that the testimony was
admitted in error. Because we further conclude that the
admission of the evidence was not harmless beyond a reasonable
doubt, we are compelled to vacate the defendant's conviction.
Background.1 1. Procedural history. The lengthy history
of this case began in April 2014, when the defendant was
indicted for the murder of Moore. His first trial, which took
place in early 2016, ended in a mistrial caused by juror
misconduct during deliberations.
In May 2018, prior to commencement of his second trial, the
defendant filed a motion to suppress statements he had made to
1 Much of the procedural history and factual background of this case is set forth in prior opinions. See Pinney v. Commonwealth, 479 Mass. 1001 (2018), S.C., 484 Mass. 1003 (2020) and 487 Mass. 1029 (2021); Commonwealth v. Pinney, 97 Mass. App. Ct. 392 (2020). We nonetheless repeat those facts necessary to provide context for our discussion of the issues raised in the present appeal.
3
the police at his house and during an interrogation at the
police station shortly after the discovery of Moore's body.
Following an evidentiary hearing, a judge allowed the
defendant's motion, finding that he had been subjected to
custodial interrogation before being advised of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). In an order denying
the Commonwealth's subsequent motion to reconsider, the judge
clarified that the suppression order did not apply to a buccal
swab that the defendant had voluntarily provided.
In May 2020, we affirmed the suppression order to the
extent it suppressed the statements the defendant made at the
police station, but we reversed the order suppressing statements
the defendant made at his house. We also concluded that the
defendant's buccal swab should have been suppressed as the fruit
of an illegal arrest. The Commonwealth filed a new motion to
compel the defendant to provide a buccal swab (second buccal
swab), which a second motion judge allowed in October 2020. The
defendant's subsequent motions to reconsider that order and to
suppress the second buccal swab were unsuccessful.
The defendant's second trial was held over the course of
eleven days in February and March 2023. On March 3, 2023, the
jury returned a verdict finding the defendant guilty of
involuntary manslaughter. The defendant received a sentence of
4
from nine to ten years in State prison, and this appeal
followed.
2. Factual background. a. Events leading up to Moore's
death. On Saturday, March 22, 2014, Moore attended festivities
taking place in the area surrounding the Holyoke Saint Patrick's
Day road race with her boyfriend, Christopher Podgurski.
Podgurski and the defendant worked together in construction and
had known each other for several years. Just a few days
earlier, Podgurski and Moore had moved from the Holyoke home of
Podgurski's mother into the defendant's two-bedroom home in
Springfield (Springfield residence).
At trial, Podgurski testified that he and Moore arrived in
downtown Holyoke for the road race festivities around noon and
spent two to three hours drinking alcohol and using marijuana
and cocaine before meeting up with the defendant. After they
met up, the defendant stated that he "was having an anxiety
attack," which prompted the defendant, Podgurski, and Moore to
travel to the home of Podgurski's mother, where they retrieved a
prescription bottle of lorazepam and used cocaine. They later
returned to the race area, where Podgurski provided the
defendant with additional cocaine.
Podgurski testified that he asked the defendant to drive
Moore home at approximately 3:30 P.M., giving him "a little bit
of cocaine" in exchange. Podgurski gave differing explanations
5
for this request, including that the next day was a "big day"
because he and Moore would be celebrating their ten-year
anniversary and attending the Holyoke Saint Patrick's Day
parade, that Moore "wanted to go home" because she was
intoxicated, and that he did not want to be around Moore because
she had an upcoming drug test. Podgurski nonetheless
acknowledged that he and Moore had already used cocaine earlier
that day and that he had purchased ten bags of cocaine for the
couple's anniversary celebration.
Podgurski reported that the defendant and Moore left, and
he spent the rest of the day drinking alcohol and watching
basketball, first at a friend's house and later at a bar. Cell
phone records reflected communications between Moore and
Podgurski that evening, including a 9:24 P.M. message from Moore
stating, "I don't want you near me tonight"; a 10:28 P.M.
message from Moore stating, "I love you baby" -- to which
Podgurski responded, "Love u too"; two messages from Moore at
11:23 P.M. stating "I want to have some sex is that possible"
and, "I am so proud to be your girl"; and two minutes later, a
message from Moore that just said, "Hello." Podgurski stated
that his cell phone battery died shortly after the last time he
spoke with Moore, which was at approximately 10:30 or 11 P.M.,
when she called to say that she was going to bed and did not
need him to bring food home. Moore's cell phone records also
6
reflected numerous outgoing calls to Podgurski during the same
period.
Podgurski testified that after leaving a bar at
approximately 2 A.M on Sunday March 23, 2014, he visited his
friend, Michael Ford; smoked marijuana with Ford; and then drove
to his mother's nearby residence and fell asleep at
approximately 3:30 A.M. Ford testified that Podgurski had
indeed stopped by that night around 2 A.M. and stayed for
approximately one-half hour. Ford stated that Podgurski
appeared to have had "a couple of beers," but did not seem
intoxicated.
Another friend of Podgurski, Robert Keitt, testified that
he attempted to call Podgurski's cell phone at approximately 5
A.M. Sunday morning. When that call went to voicemail, Keitt
called the home telephone of Podgurski's parents. Keitt
testified that Podgurski's mother answered and told him that
Podgurski was asleep. Keitt stated that he heard Podgurski
snoring in the background and that Podgurski sounded "pretty
drunk" when he came to the telephone.
Cell phone records reflected several text messages that the
defendant had sent to Podgurski and Moore during the early
morning hours of March 23, 2014. At 1:32 A.M., the defendant
texted Moore, "U still up? I got a rip if you want, I'm anxious
and can't sleep." At 4:25 A.M., the defendant sent Podgurski a
7
text message stating "[t]he pill finally helped, thanks
goidnight [sic]," followed one minute later by a message that
said, "[g]o got Clair nice n call, she's fucked up and ain't
saying ad work man [sic]."
b. Discovery of Moore's body. Podgurski testified that he
returned to the Springfield residence at approximately 11:30
A.M. on March 23, 2014. Upon entering the home, he called out
for Moore before going upstairs to the bedroom they shared,
where he found Moore's cell phone and glasses. Podgurski stated
that he answered an incoming call on Moore's cell phone and
spoke to Moore's nephew, although the nephew testified that he
had heard only breathing on the other end of the line. While he
was upstairs, Podgurski could hear the defendant's snoring in
his bedroom. After the call from Moore's nephew, Podgurski said
that he went back downstairs, rolled a "blunt," and charged his
cell phone in the kitchen while using Moore's cell phone to call
a friend. After he finished smoking the blunt, Podgurski went
back upstairs.
Podgurski gave differing accounts of the sequence of events
that followed. In one version, Podgurski testified that he
knocked on the defendant's door, stating, "[c]ome on, we got to
go to work." He asked the defendant if he had seen Moore, and
from behind the closed door, the defendant said that Moore "got
mad and . . . left." After about fifteen to twenty minutes, the
8
defendant opened the door with a knife in his hand. Podgurski
alternately testified that he first interacted with the
defendant while Podgurski was standing in the upstairs hallway
and the defendant "snuck out" of his bedroom to use the
bathroom, closing his bedroom door behind him. In this telling,
Podgurski told the defendant that he was "not leaving [the]
house" until he made sure Moore was not there. This prompted
the defendant to go downstairs to retrieve a knife and a set of
keys that he used to open his bedroom door. In both iterations,
Podgurski testified that, as the defendant opened his bedroom
door, the defendant said, "check it out, check it out."
Once the bedroom door was open, Podgurski saw "a pair of
brown legs on the bottom of the bed." He "pretended like [he]
didn't see anything" and went outside to call police.
Police captain Richard LaBelle testified that he responded
to the Springfield residence at approximately 12:44 P.M. on
Sunday March 23, 2014, and encountered Podgurski outside near
the driveway. LaBelle testified that Podgurski seemed "very
excited" and eager to get LaBelle's attention. LaBelle entered
the residence and found the defendant in the kitchen. He saw
blood on the floor and superficial lacerations on the
defendant's arms and neck. The defendant told LaBelle that no
one else was inside the home.
9
After additional officers arrived, police conducted a
search of the residence. Because the defendant's bedroom door
was locked, officers forced entry and discovered Moore lying
unclothed and unresponsive on the floor beside the bed. LaBelle
noticed a green cord hanging off the headboard "right away."
Emergency medical technicians arrived at the scene shortly
thereafter and determined that Moore was deceased.
Two days later, police executed a search warrant at the
Springfield residence and recovered one-half of a green
electrical cord, as well as several belts and a drawstring, from
a dresser drawer in the defendant's bedroom.
c. Medical evidence. Dr. Anna McDonald, a forensic
pathologist, performed an autopsy of Moore's body. Dr. McDonald
testified that Moore's injuries were concentrated in her head
and neck area, including linear abrasions on the right side of
her neck, petechial hemorrhaging on her lips and neck,
hemorrhaging within her neck muscles, and hemorrhages indicative
of blunt force injury on the back of Moore's head. Based on the
linear abrasions, petechiae, and hemorrhaging on Moore's neck,
Dr. McDonald concluded that Moore's cause of death was asphyxia
caused by ligature strangulation.
Dr. McDonald also noted "foamy secretions from [Moore's]
nose," which she testified are "commonly seen in drug related"
deaths. Toxicology testing revealed that Suboxone, cocaine,
10
citalopram, marijuana, and alcohol were present in Moore's
system at the time of her death. Dr. McDonald nonetheless
opined that Moore's injuries "surpassed any sort of toxicologic
evidence that may or may not be present."
Dr. McDonald further testified that if a cloth belt
recovered from the defendant's dresser drawer were "folded a
particular way," it "could correlate potentially with the
abrasions" on Moore's neck. She similarly opined that the
drawstring recovered from the defendant's dresser could
potentially correspond to Moore's neck injuries if it had been
"applied twice" or "simply rolled up the neck." Dr. McDonald
additionally testified that, because of the presence of "too
many variables," the time of Moore's death was an "open
question."
Dr. Jonathan Arden, a forensic pathologist retained by the
defense, disagreed with Dr. McDonald's conclusions and testified
that the medical findings were not definitive of fatal
strangulation and were more consistent with mixed drug
intoxication.
d. DNA evidence. The results of DNA testing were
presented though the testimony of two substitute experts,
Kathleen Gould and Krista Lungren, employees of the
Massachusetts State police crime laboratory (crime lab), who
11
relied extensively on reports generated by Kira Snyder, a former
crime lab employee who conducted the original DNA testing.
Gould testified that a red-brown stain found below Moore's
right breast produced a DNA profile consistent with the
defendant's DNA profile, and that the expected frequency of that
profile is approximately one in 665 quadrillion unrelated
individuals. Gould also testified that a swab of the green cord
recovered from the headboard of the defendant's bed contained a
mixed DNA profile that included Podgurski and excluded both
Moore and the defendant. The DNA profile generated from
scrapings of skin from under the fingernails of Moore's left
hand was also consistent with Podgurski's profile and excluded
the defendant.2
Lungren testified about the DNA profiles generated from the
belts and drawstring recovered from the defendant's dresser
drawer. Lungren testified that testing of the cloth belt that
Dr. McDonald identified as a potential ligature contained a
mixed DNA profile consistent with Moore and the defendant as
possible contributors.3 Specifically, Lungren opined that it was
2 The expected frequency of the profile from Moore's fingernail scrapings was one out of every two unrelated individuals, or approximately forty percent of the male population.
3 Although the record is not clear that the belt Dr. McDonald identified as a potential ligature was the same belt Lungren later identified as containing a mixed DNA profile
12
"730 quadrillion times more likely that the DNA profile
obtained" was from Moore and two unknown individuals than from
three unknown individuals unrelated to Moore, and 4.7 million
times more likely that one of the DNA profiles came from the
defendant and two unknown individuals than from three unknown
individuals not related to the defendant. Testing of the
drawstring similarly yielded a mixed DNA profile that was
"550,000 times more likely" to have come from Moore and two
unknown individuals than from three unknown individuals
unrelated to Moore.
Discussion. 1. Sufficiency of the evidence. The
defendant first challenges the sufficiency of the evidence
underlying his conviction, asserting that the jury's decision to
convict him of involuntary manslaughter rather than murder
demonstrates that they rejected the Commonwealth's theory that
Moore died from ligature strangulation.4 The defendant argues
that the only remaining cause of death supported by the evidence
was a drug overdose, and the Commonwealth did not establish the
additional facts necessary to impose criminal liability for an
consistent with the DNA profiles of Moore and the defendant, the parties do not dispute that both witnesses were referring to the same green cloth belt.
4 At trial, defense counsel asserted that the evidence
supported an involuntary manslaughter instruction. The judge agreed to give such an instruction, and the defendant does not challenge the propriety of that instruction on appeal.
13
overdose death. See Commonwealth v. Carrillo, 483 Mass. 269,
274 (2019). When reviewing a claim of insufficient evidence, we
consider "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319
(1979). Such inferences "need only be reasonable and possible;
[they] need not be necessary or inescapable." Commonwealth v.
Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth
v. Woods, 466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014),
S.C., 480 Mass. 231, cert. denied, 586 U.S. 1054 (2018).
"A verdict of involuntary manslaughter is warranted 'only
where the defendant caused an unintentional death (1) during the
commission of an act amounting to wanton or reckless conduct, or
(2) during the commission of a battery.'" Commonwealth v.
Degro, 432 Mass. 319, 331 (2000), quoting Commonwealth v.
Brooks, 422 Mass. 574, 578 (1996). Under the first theory, the
Commonwealth was required to show "intentional conduct that
create[s] a high degree of likelihood that substantial harm will
result to another person." Commonwealth v. Ferguson, 497 Mass.
199, 206 (2026), quoting Commonwealth v. O'Brien, 494 Mass. 288,
297 (2024). Under the second theory, the Commonwealth was
required to show a battery "which the defendant knew or should
14
have known endangered human life." Commonwealth v. Moseley, 483
Mass. 295, 303 (2019), quoting Commonwealth v. Tague, 434 Mass.
510, 518 (2001), cert. denied, 534 U.S. 1146 (2002).
Viewing the evidence in the light most favorable to the
Commonwealth, the jury could have reasonably concluded that the
defendant engaged in conduct that involved a high degree of
likelihood of substantial harm and that such conduct caused
Moore's death; and, for that matter, that he committed a battery
that he knew or should have known endangered human life. Cell
phone records and Podgurski's testimony permitted an inference
that the defendant was alone with Moore during the time period
when she died. Dr. McDonald's testimony established that Moore
died as a result of ligature strangulation, an act that
inherently involves a risk of fatal injury. The jury could also
rely on forensic evidence linking the defendant and Moore to the
belt identified as the likely instrument of death. The drop of
the defendant's blood found below Moore's right breast further
supports an inference of close physical contact between the
defendant and Moore at or near Moore's time of death.5 Finally,
the jury could consider evidence of the defendant's conduct
5 Although, as discussed infra, we conclude that the DNA evidence was improperly admitted, we may still take it into account for purposes of a sufficiency analysis. See Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014).
15
after Moore's death as indicative of consciousness of guilt.
The defendant told Podgurski that Moore got mad and left, and he
was reluctant to open his bedroom door while Moore's body lay
inside, even locking it before police arrived.6
The defendant's reliance on Moseley, 483 Mass. at 303, in
support of his contention that ligature strangulation, if
proven, establishes an intentional killing rather than an
unintentional death, is unavailing. In Moseley, supra, the
Supreme Judicial Court considered whether an involuntary
manslaughter instruction was warranted where the evidence
established that the defendant had pulled "a ligature around the
victim's neck" for several minutes, "until the victim had
stopped struggling." The court concluded that an involuntary
manslaughter instruction was unwarranted because the defendant's
conduct "created a 'plain and strong likelihood that death would
follow.'" Id., quoting Degro, 432 Mass. at 331. The court in
Moseley, supra, did not hold that ligature strangulation
establishes an intentional killing as a matter of law, nor did
6 We note that the Supreme Judicial Court previously concluded that the evidence presented at the defendant's first trial, which was substantially similar to the evidence presented during his second trial, "was more than sufficient to permit the jury to conclude that [the defendant] killed [Moore]." Pinney, 479 Mass. at 1004.
16
it create a presumption regarding a defendant's mental state.7
Rather, it addressed only whether the evidence in that case
supported an involuntary manslaughter instruction.
Although the jury were instructed to return a verdict on
the highest offense proved beyond a reasonable doubt, that the
jury found the defendant guilty of involuntary manslaughter does
not necessarily warrant the inference that the jury rejected the
ligature strangulation theory, as the defendant asserts. The
jury were free to credit the evidence that Moore died from
ligature strangulation while harboring reasonable doubt that the
Commonwealth proved the mental state required to convict the
defendant of murder.
To that end, there was ample evidence from which the jury
could have found that the defendant was significantly
intoxicated and impaired at the time of Moore's death. Based on
that evidence, the jury could have concluded that the
Commonwealth had failed to meet its burden to establish that the
defendant was capable of forming the intent or knowledge to
commit murder while nevertheless finding that he engaged in
7 Nor could it establish such a presumption without raising due process concerns. See Commonwealth v. Brown, 477 Mass. 805, 815-816 (2017), cert. denied, 586 U.S. 826 (2018) ("An instruction that the jury reasonably could have interpreted as a mandatory presumption violates due process and cannot stand").
17
conduct that created a high degree of substantial harm.8 See
Commonwealth v. Salazar, 481 Mass. 105, 114 (2018), quoting
Commonwealth v. Carter, 475 Mass. 512, 524 (2016) ("Because the
defendant's intoxication may have been probative of a lack of
capacity to formulate the intent necessary to prove murder by
deliberate premeditation, the jury could have found the
defendant guilty of a lesser offense . . . had they determined
his level of intoxication to be 'debilitating'"); Commonwealth
v. Montrond, 477 Mass. 127, 134 (2017) (evidence of intoxication
"could have undercut the Commonwealth's theory that the shooting
was intentional"); Commonwealth v. Sama, 411 Mass. 293, 298
(1991) ("Under the third prong of malice, the Commonwealth must
establish the guilty knowledge of the defendant beyond a
reasonable doubt, and evidence of a defendant's intoxication
should be considered by the jury"). Additionally, the
8 Specifically, when Moore's body was discovered, there were numerous empty beer bottles in the defendant's room and an empty bottle of lorazepam on his bed. Podgurski testified that the bottle had contained eleven pills when he gave it to the defendant less than twenty-four hours earlier. In addition, the defendant texted Moore at approximately 1:30 A.M. asking her to ingest cocaine with him, and sent Podgurski an incoherent, typographical-error-ridden message at approximately 4:30 A.M. The presence of fifty to sixty superficial wounds on the defendant's head and neck when he was arrested, and the state of his bedroom -- where officers found an extension cord tied to the headboard and draped across the bed, a bloody metal rod on the defendant's nightstand, and a nail gun plugged into an air compressor without any apparent purpose -- also support an inference of seemingly erratic and impaired behavior.
18
Commonwealth did not present any evidence of motive or animosity
between Moore and the defendant. Although not dispositive, the
jury could consider the apparent absence of motive, together
with the evidence of severe intoxication, in their determination
whether the Commonwealth had proved an intentional killing
beyond a reasonable doubt. See Commonwealth v. McCauley, 355
Mass. 554, 560-561 (1969) (to determine whether homicide was
unintentional rather than intentional, jury could consider "the
degree and nature of the acquaintance" between victim and
defendant, "the relationship of amiability to the time of the
shooting, and the total absence of any reason for hostility"
between them).
2. Substitute analysts. Next, the defendant contends that
the Commonwealth violated his confrontation rights under the
Sixth Amendment to the United States Constitution and art. 12 of
the Massachusetts Declaration of Rights by eliciting testimony
from substitute analysts regarding DNA testing performed by a
nontestifying analyst. At the time of the defendant's trial,
controlling precedent permitted such testimony. See
Commonwealth v. Greineder, 464 Mass. 580, 603, cert. denied, 571
U.S. 865 (2013). However, while this appeal was pending, the
Supreme Judicial Court ruled in Commonwealth v. Gordon, 496
Mass. 554, 574-575 (2025), that testimony from a substitute
expert that depends on the truth of testimonial hearsay from a
19
nontestifying expert violates the confrontation clause. The
Supreme Judicial Court stated that this result was dictated by
the decision of the United States Supreme Court in Smith v.
Arizona, 602 U.S. 779 (2024), and instructed that its holding
"applie[d] prospectively and retroactively to those cases that
were active or pending on direct review as of the date of the
issuance of Smith." Gordon, supra at 587-588. The Commonwealth
concedes -- and based on our independent review of the evidence
we agree -- that the testimony of the substitute analysts, Gould
and Lungren, depended on the findings and report of the original
analyst, Snyder, who did not testify.9 Accordingly, their
testimony violated the defendant's confrontation rights.
"Where, as here, the defendant's rights were preserved
through objection at trial, . . . 'we evaluate the admission of
constitutionally proscribed evidence to determine whether it was
harmless beyond a reasonable doubt.'" Gordon, 496 Mass. at 584-585, quoting Commonwealth v. Rand, 487 Mass. 811, 814-815
(2021). "The 'essential question' in analyzing harmlessness
9 Although Snyder testified at the defendant's first trial in 2016, by 2023 she had left her employment with the crime lab. The Commonwealth did not attempt to show that Snyder was unavailable, see Mass. G. Evid. § 804(a) (2023) --understandably so, as Gordon had not yet been decided. The Commonwealth will need to make such a showing if there is a retrial. See Mass. G. Evid. § 703 (2026) ("a prosecution expert's opinion may not depend on testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination of the declarant").
20
beyond a reasonable doubt is 'whether the error had, or might
have had, an effect on the [fact finder] and whether the error
contributed to or might have contributed to the [findings of
guilty]." Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010),
quoting Commonwealth v. Perrot, 407 Mass. 539, 549 (1990).
"As an appellate court, we ask whether 'on the totality of
the record before us, weighing the properly admitted and
the improperly admitted evidence together, we are satisfied
beyond a reasonable doubt that the tainted evidence did not
have an effect on the [fact finder] and did not contribute
to the [fact finder's findings]."
Vasquez, supra, quoting Commonwealth v. Tyree, 455 Mass. 676,
701 (2010). In conducting this analysis,
"we examine factors such as 'the importance of the evidence
in the prosecution's case; the relationship between the
evidence and the premise of the defense; who introduced the
issue at trial; the frequency of the reference; whether the
erroneously admitted evidence was merely cumulative of
properly admitted evidence; the availability or effect of
curative instructions; and the weight or quantum of
evidence of guilt.'"
Commonwealth v. Ramsey, 466 Mass. 489, 494 (2013), quoting
Commonwealth v. Mendes, 463 Mass. 353, 359 (2012). The
Commonwealth bears the burden of demonstrating that the error
was harmless, and we "resolve all ambiguities and doubts in
favor of the defendant." Gordon, supra at 585, quoting
Commonwealth v. Vardinski, 438 Mass. 444, 452-453 (2003).
At trial, the Commonwealth proceeded on the theory that the
defendant was despondent about his failing marriage, and after a
day of drinking and using cocaine he "snapped" and strangled
21
Moore before attempting to take his own life.10 The defendant's
theory was that Podgurski killed Moore and later moved Moore's
body into the defendant's bedroom while he was sleeping. The
testimony of the substitute analysts provided critical forensic
support for the Commonwealth's theory. The central issues at
trial were whether Moore died from ligature strangulation and,
if so, who caused her death. The challenged DNA evidence bore
directly on both issues. Through the testimony of the
substitute analysts, the Commonwealth established that a drop of
blood recovered from Moore's body matched the defendant's DNA
profile; that a belt identified as a potential ligature
contained DNA consistent with both the defendant and Moore; that
a drawstring identified as a potential ligature contained DNA
consistent with Moore; and that Podgurski's DNA was not on
either item. The substitute analysts' testimony therefore
provided scientific support for the Commonwealth's contention
that Moore died by ligature strangulation at the hands of the
defendant rather than Podgurski.
The Commonwealth emphasized the significance of the DNA
evidence throughout trial. During his opening statement, the
prosecutor expressly stated that DNA evidence would show that
10At trial, the defendant's ex-wife testified that the defendant had been served divorce papers the day before Moore's body was discovered.
22
the defendant's blood was found on Moore's body, that DNA
consistent with the defendant and Moore was found on a potential
ligature, and that Podgurski's DNA was absent from the belt and
drawstring that were identified as potential ligatures. The
prosecutor made the same points during his closing argument,
stressing that the DNA evidence was proof that the defendant,
rather than Podgurski, killed Moore.
The DNA evidence also provided the most significant
evidentiary corroboration of the Commonwealth's theory, which
otherwise relied principally on the testimony of Podgurski,
whose credibility was subject to substantial impeachment. Among
other things, evidence was presented that Podgurski testified
pursuant to an immunity agreement bearing on his potential
criminal exposure and therefore had an incentive to minimize his
personal involvement. The jury also heard evidence that
Podgurski had strangled Moore on several occasions over the
course of their ten-year relationship, suggesting a possible
motive to deflect suspicion and undermining the objectivity of
his account by showing he had previously engaged in conduct
similar to that theorized to have caused Moore's death. The
jury could properly consider this evidence in weighing
Podgurski's testimony, rendering forensic corroboration of his
account particularly significant.
23
On this record, we cannot conclude beyond a reasonable
doubt that the testimony of substitute analysts did not
contribute to the verdict. Although the DNA evidence was not,
by itself, dispositive of Moore's cause of death or the identity
of the person who caused it, it provided objective forensic
corroboration of the Commonwealth's theory of the case and
directly countered the defense's contention that Podgurski was
the perpetrator. Given the significance of that evidence to the
Commonwealth's case-in-chief, the prosecutor's repeated emphasis
on it during opening and closing arguments, and the shortcomings
of Podgurski's testimony, the properly admitted evidence was not
so overwhelming that the erroneously admitted testimony could
not have influenced the jury's resolution of the contested
issues. See Tyree, 455 Mass. at 704 n.44. For these reasons,
we cannot say that the erroneously admitted evidence was
harmless beyond a reasonable doubt. Accordingly, the
defendant's conviction must be vacated. We will address the
other claims the defendant has raised, as they are likely to
recur in the event of a retrial.
3. Buccal swab. As set forth above, before the
defendant's second trial, we affirmed an order suppressing
statements the defendant had made during a custodial police
interrogation; we further held that the buccal swab the
defendant had consented to during the same interrogation should
24
have also been suppressed. See Commonwealth v. Pinney, 97 Mass.
App. Ct. 392, 393 (2020). We explained, inter alia, that
although the motion judge had stated it was "probable" the
Commonwealth would have eventually obtained the buccal swab, the
record did not support a conclusion that discovery was "certain
as a practical matter," insofar as there was no prior motion
before the judge explaining the buccal swab's relevance or basis
for obtaining a sample independent of the unlawful collection.
Id. at 401-402.
On remand, the Commonwealth filed a new motion to compel a
DNA sample, which a second motion judge granted. The
defendant's subsequent attempts to suppress the second buccal
swab were unsuccessful. The defendant argues that the second
buccal swab should have been suppressed, asserting that the
Commonwealth's request for a second buccal swab was tainted by
its exposure to the first, illegally obtained swab. We are not
persuaded.
"The proper inquiry is not whether the prior illegality can
be undone, but whether the subsequently seized evidence has been
obtained 'by means sufficiently distinguishable to be purged of
the primary taint.'" Commonwealth v. Carvajal, 496 Mass. 490,
495-496 (2025), quoting Commonwealth v. Frodyma, 393 Mass. 438,
441 (1984). The defendant suggests that because the
Commonwealth possessed and tested the initial, unlawfully
25
obtained buccal swab, it used knowledge gained from the
suppressed sample to justify seeking the second swab. This
contention, however, is belied by the record, which reveals that
the Commonwealth's second motion to compel rested on separate
evidentiary bases, including DNA profiles generated from other
sources, results from a sexual assault evidence kit, the
presence of both the defendant and Podgurski at the crime scene,
the presence of wounds on both the defendant and Moore, and the
presence of blood in common areas of the Springfield residence.
The defendant's additional arguments, concerning the timing
of the motion to compel, the sequence of the investigation, and
the Commonwealth's continued possession of the suppressed swab,
do not alter this conclusion. "[T]he constitutional exclusion
of one item of evidence does not bar the Commonwealth from later
obtaining similar evidence through lawful means, provided it is
supported by an independent and sufficient evidentiary basis.
. . . [I]t bars only the use of evidence that exploits that
initial illegality." Carvajal, 496 Mass. at 497. This is not,
as the defendant suggests, a case where the challenged evidence
derived directly from unlawful police conduct. See Commonwealth
v. Lugo, 102 Mass. App. Ct. 170, 181 (2023) (illegally obtained
statements should be suppressed where "misconduct was committed
expressly to acquire the statements, and the conduct, more
importantly, constituted a 'protocol' of the Springfield police
26
department that promoted unconstitutional investigative
detentions"). Because the second buccal swab was obtained
pursuant to a court order supported by independent probable
cause, untainted by the prior illegality, the exclusionary rule
does not require its suppression.
4. Additional evidentiary and trial errors. We last turn
to the defendant's arguments challenging (1) the trial judge's
exclusion of a September 2015 e-mail message that the trial
prosecutor sent to the Massachusetts Office of the Chief Medical
Examiner (e-mail); (2) the denial of the defendant's motion to
disqualify the trial prosecutor; and (3) the trial judge's
failure to recuse himself.
a. Exclusion of the e-mail. At trial, the defendant
sought to introduce the e-mail to show bias and impeach Dr.
McDonald's testimony. The e-mail, sent by the trial prosecutor
to the attention of a different medical examiner11 and later
found in Dr. McDonald's case file at the chief medical
examiner's office, stated in relevant part:
"Defense is going to point to the fact that boyfriend and
victim have a history of domestic incidents (3 prior
charges that coincidentally are all manual strangulation
cases). Also, DNA from victim's fingernail scrapings comes
back to boyfriend, not the defendant. There is also a
potential ligature in defendant's bedroom (a green
electrical cord tied to his headboard) which has
boyfriend's DNA on it but not the defendant's or victims
11The record is unclear as to the precise nature of the other medical examiner's involvement in the autopsy of Moore.
27
[sic]. We have not been able to identify what instrument
may have been used to kill victim. . . . I would like to
establish that the marks on victim's neck are from a
ligature as opposed to being from hands."
Although the e-mail was not admitted in evidence, the trial
judge permitted defense counsel to cross-examine Dr. McDonald
about it. She testified that she had seen it, and sometime
thereafter concluded Moore's cause of death was ligature
strangulation. Having permitted cross-examination regarding the
e-mail, the judge could properly exclude the e-mail itself. See
Commonwealth v. Allison, 434 Mass. 670, 681 (2001), quoting
Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516
U.S. 861 (1995) (where bias has been established, additional
evidence of bias may be excluded as redundant). The trial judge
could have also properly concluded that the e-mail was of little
value where there was no evidence that Dr. McDonald relied on
the e-mail (1) in forming her opinions, and (2) when she
provided an independent evidentiary foundation for her
conclusions, including determining Moore's cause of death based
on autopsy findings such as the patterns and distribution of
Moore's neck injuries. See Commonwealth v. Kindell, 84 Mass.
App. Ct. 183, 187 (2013) (trial judge has discretion to exclude
evidence "of no more than marginal value to the party conducting
the cross-examination").
28
Because the jury were presented with the substance of the
e-mail and objective bases for Dr. McDonald's conclusions, the
trial judge acted within his discretion in concluding that the
e-mail itself was not necessary for the jury to assess the
reliability of her conclusions. See Commonwealth v. Souza, 492
Mass. 615, 626 (2023) (decision to admit or exclude evidence
reviewed for abuse of discretion).
b. Motion to disqualify. Next, the defendant argues that
"[b]y failing to record the interviews with Podgurski at which
the other witnesses' memories faltered," and by sending the 2015
e-mail to the medical examiner's office, the trial prosecutor
"effectively made himself a material witness." The defendant
refers to two meetings with Podgurski, on September 15, 2015,
and December 9, 2015, that the prosecutor failed to record
despite defense counsel's request for him to do so. After each
meeting, however, the prosecutor sent defense counsel a summary.
At trial, Podgurski and a detective who was present at the
meetings either did not recall portions of the meetings or
remembered things differently. The defendant argues that the
trial judge should have disqualified the prosecutor and allowed
the defendant to call him as a witness, and that the trial judge
further erred by excluding the detective's notes from evidence.
Where a defendant seeks to call the prosecutor as a
witness, "he must make a satisfactory offer of proof as to the
29
need for the prosecutor's testimony" and "show that the
prosecutor had personal knowledge of relevant factors bearing on
the credibility of [other witnesses] that could not be elicited
by other means." Commonwealth v. Blaikie, 375 Mass. 601, 609
(1978). The defendant has failed to make that showing here.
Defense counsel extensively cross-examined Dr. McDonald
regarding the e-mail and questioned Podgurski and the detective
about the interviews and their recollections of what was said.
More significantly, the defendant has not identified what
material testimony the prosecutor possessed that was unavailable
through those witnesses. In these circumstances, the trial
judge acted within his discretion in declining to disqualify the
prosecutor or allow the defendant to call him as a witness.
c. Motion to recuse. The defendant last argues that the
trial judge improperly denied his motion seeking the judge's
recusal. This argument lacks merit. The defendant has neither
established that the trial judge failed to consider whether he
could "remain impartial under the circumstances," nor shown that
"a disinterested observer, informed of all the circumstances,
[would] reasonably believe that the judge's impartiality may
have been compromised." Commonwealth v. Mitchell, 496 Mass. 66,
80 (2025), quoting Commonwealth v. Cousin, 484 Mass. 1042, 1045-1046 (2020). The defendant's speculative assertion that the
trial judge improperly rushed the case to trial following a
30
public statement by the district attorney for the Hampden
District, regarding the defendant's pretrial release and the
delays in retrying him, not only lacks record support but is
undermined by the fact that the trial judge rebuked the district
attorney's statement in open court during the defendant's final
pretrial conference.12 Accordingly, there was no error.
Conclusion. The judgment is vacated, the verdict is set
aside, and the case is remanded to the Superior Court to allow
the Commonwealth to retry the defendant if it so chooses.
So ordered.
12The defendant also claims for the first time on appeal that several adverse evidentiary rulings suggest the trial judge was biased against him. This claim is without merit, as "[t]he mere fact that a party suffers adverse rulings during litigation does not establish lack of judicial impartiality." Clark v. Clark, 47 Mass. App. Ct. 737, 739 (1999). Insofar as the defendant disagreed with certain rulings, those rulings were reviewable through the ordinary appellate process.