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Commonwealth v. Pena

Appeals Court of Massachusetts, Suffolk

December 5, 2019

COMMONWEALTH
v.
JORGE PENA.

          Heard: April 8, 2019.

          Indictments found and returned in the Superior Court Department on March 9, 2016. The cases were tried before Edward P. Leibensperger, J.

          Joseph Visone for the defendant.

          Amanda Teo, Assistant District Attorney (Sarah McEvoy, Assistant District Attorney, also present) for the Commonwealth.

          VUONO, J.

         A jury in the Superior Court convicted the defendant on two indictments charging him with rape of a child aggravated by age difference.[1] The victim, whom we shall call Alice, is the daughter of the woman with whom the defendant was living. One indictment charged rape by natural sexual intercourse. The other charged rape by unnatural sexual intercourse.

         The defendant raises three issues on appeal. First, he contends that the judge erred by admitting testimony under the first complaint doctrine from a witness who was not the first person to hear of the rapes. Second, the defendant claims the evidence was insufficient to support his conviction on the indictment charging unnatural sexual intercourse because the Commonwealth failed to prove the element of penetration. That indictment alleged that the defendant "did unlawfully have unnatural sexual intercourse with and abuse [Alice] by penetrating the mouth of [Alice] with his ejaculate." Third, he asserts the prosecutor improperly vouched for Alice's credibility during her closing argument. We affirm.

         1. Background.

         a. The Commonwealth's case.

         We summarize the evidence presented in the Commonwealth's case-in-chief in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Alice was living in an apartment in the Dorchester section of Boston with her mother and her three sisters when the defendant began to sexually abuse her. Alice was eleven years old at the time. The family was under significant stress because Alice's mother was ill and not able to work, Alice's thirteen year old sister was diagnosed with a neurodegenerative disorder, and Alice's younger sisters, five year old twins, needed supervision and care. The defendant, who had been involved in a romantic relationship with Alice's mother for about ten years, was the family's main source of financial support.

         Alice testified that the defendant sexually abused her on three occasions while she was in the sixth grade. On the first occasion, Alice found herself home alone with the defendant and her older sister one day after school. At the time, the sister could not walk without assistance. The defendant took Alice to the bedroom he shared with Alice's mother and began to fondle her. He touched Alice's breasts and kissed her on the lips.

         The second incident started the same way. Alice and her older sister were home alone with the defendant; the defendant took Alice into the bedroom where he touched her breasts and kissed her. This time, however, the defendant proceeded to remove Alice's pants and underwear and "put" her on the bed. He then raped Alice by inserting his penis into her vagina. Next, he told Alice to get onto the floor on her knees and open her mouth. When she did so, he ejaculated into her mouth. Alice testified that the defendant "put [e]aculate] in my mouth." She then "threw up [the ejaculate] in the bathroom." The defendant told Alice not to tell anyone and suggested that the family would be ashamed of her. Alice felt guilty and kept silent.

         The third incident occurred when Alice's mother and older sister were in California, where the older sister was receiving experimental medical treatment, and Alice and her younger sisters were staying with an aunt. One of the sisters became ill and needed medicine from home. The defendant drove Alice from her aunt's home to the family's apartment to retrieve the medicine. While the defendant and Alice were alone in the apartment, the defendant pulled Alice into the mother's bedroom and had sexual intercourse with her.[2] This time the defendant ejaculated onto his hand. The defendant told Alice not to tell anyone and instructed her to tell her aunt that they were late due to traffic and because they had trouble opening the door of the apartment. Alice followed the defendant's instructions.

         Alice continued to remain silent about the sexual abuse until the end of the school year when she met her mother's younger brother, Manuel Valdez. Valdez had just moved to Boston and met Alice for the first time. Alice sent Valdez a number of graphic text messages telling him that she wanted "to have sex" with him. She also wrote that she wanted to "suck him off," "twerk in front of him," "do doggie," and "do it in the bathroom." Valdez was taken aback and asked Alice how she knew about such things. Alice responded with a text message stating that she "had sex" with the defendant. Valdez sought advice from his brother, Cristino Jimenez Medina, [3] and showed him the text messages. At some point, Alice's mother was told about the text messages and Alice's ...


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