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17-P-512 Appeals Court

COMMONWEALTH vs. PETER CHONGA.

No. 17-P-512.

Middlesex. May 2, 2018. - November 1, 2018.

Present: Rubin, Henry, & Desmond, JJ.

Stalking. Assault and Battery. Evidence, Threat.

Indictments found and returned in the Superior Court 

Department on May 31, 2012. 

The cases were tried before Mitchell H. Kaplan, J., and a 

motion for a new trial, filed on July 27, 2015, was considered 

by him.

Nelson P. Lovins for the defendant.

Elizabeth J. May, Assistant District Attorney, for the 

Commonwealth.

RUBIN, J. The defendant was convicted after a jury trial 

of stalking in violation of G. L. c. 265, § 43 (a), and assault 
2

and battery in violation of G. L. c. 265, § 13A (a).1 He now 

appeals.

Background. Viewing the evidence in the light most 

favorable to the Commonwealth, see Commonwealth v. Latimore, 378 

Mass. 671, 677 (1979), the jury could have found the following.

The victim and defendant were married in Malawi and moved to 

Woburn together in the summer of 2009.2 Their relationship was

initially "good" but then deteriorated. The defendant became, 

in the victim's words, "controlling" and frequently demanded to 

check the victim's cellular telephone (cell phone) and 

electronic mail messages (e-mails). The defendant also became 

physically "abusive." The victim testified that the defendant

"tried to choke" her, using two hands and squeezing her neck, 

and threatened to kill her, something that, she testified, he 

threatened to do "all the time." 

In September of 2010, the victim moved into her own 

apartment in Burlington. Although she did not tell the 

defendant where she had moved, he first showed up within one or 

two weeks and continued to go to her apartment about four times 

 

1 The defendant was found not guilty of rape, attempted 

murder, assault by means of a dangerous weapon, witness 

intimidation, and a second count of assault and battery.

2 The victim moved to the United States in or about January 

of 2008, working as an au pair for a family in Connecticut, and 

at her request, the defendant joined her in the United States in 

the summer of 2009. 
3

per month. She would let him in because "[i]t was embarrassing 

arguing outside when everybody's seeing you." When the 

defendant went in, he would check her e-mails and cell phone, 

and he would telephone her friends and accuse them of sleeping 

with her. The defendant also would telephone the victim "all 

the time" -- sometimes up to twenty times in a row and sometimes 

with blocked numbers -- asking her where she was, and he would 

follow her. Around April 1, 2011, the defendant entered the 

victim's apartment, pointed a knife at the victim's neck, and 

threatened to use it to kill both her and himself. One week 

later, the defendant again turned up at the victim's apartment 

uninvited. The victim, understandably not wanting him to be 

there, lied by stating that she had to go to work. When he 

discovered that this was a lie, he entered the victim's 

apartment, took her cell phone and the handset from the home 

telephone, threatened to kill her, and eventually hit her 

repeatedly with his boot. The victim managed to escape to a

neighbor's house, but not before, by the defendant's own 

admission, he grabbed her arm while she was running out the 

door. After the victim escaped, her friend Patrick received 

calls from the victim's cell phone and home telephone numbers 

from a man he did not know who cursed at him and refused to tell 

him the victim's whereabouts. Patrick then called the police

and drove to the victim's apartment. 
4

Discussion. The defendant argues that the evidence was 

insufficient to support his conviction of stalking. The statute 

provides that "[w]hoever (1) willfully and maliciously engages 

in a knowing pattern of conduct or series of acts over a period 

of time directed at a specific person which seriously alarms or 

annoys that person and would cause a reasonable person to suffer 

substantial emotional distress, and (2) makes a threat with the 

intent to place the person in imminent fear of death or bodily 

injury, shall be guilty of the crime of stalking . . . ." G. L. 

c. 265, § 43 (a).

The defendant contends first that his repeated 

intimidating, threatening, and physically violent conduct 

directed at the victim was not "wilful" because it was not 

"intentional and by design." Commonwealth v. Peruzzi, 15 Mass.

App. Ct. 437, 443 (1983). The defendant argues that this 

conduct was "motivated by jealousy and anger." Contrary to the 

implication of his argument, this does not, even if true, 

indicate that the conduct was not intentional and by design, or 

that the defendant did not intend both the conduct and its 

harmful consequences. 

Second, the defendant contends that his words did not 

constitute threats, because there was no evidence of a "fearful 

or apprehensive response." In making this argument, he relies 

on the statement in Commonwealth v. Chou, 433 Mass. 229, 234 
5

(2001), that "language properly may be understood and treated as 

a threat even in the absence of an explicit statement of an 

intention to harm the victim as long as circumstances support 

the victim's fearful or apprehensive response." 

To begin with, we note that the defendant neither requested 

nor received an instruction that the threat element of stalking 

required that the victim subjectively be put in fear or 

apprehension. Rather, the jury were instructed without 

objection that the threat element of stalking would be met by 

proof beyond a reasonable doubt that "the defendant also made a 

threat with the intention of placing the alleged victim in 

imminent fear of death or bodily injury." See Virginia v. 

Black, 538 U.S. 343, 359 (2003) ("'True threats' encompass those 

statements where the speaker means to communicate a serious 

expression of an intent to commit an act of unlawful violence to 

a particular individual or group of individuals"). On appeal, 

the defendant does not claim any error in that instruction, and 

the evidence was clearly sufficient to support the jury's 

finding on the elements of threat and intent. 

In any event, the claim that there was no evidence of a 

fearful or apprehensive response is insubstantial. Assuming 

without deciding that the language in Chou means the definition 

of threat may include a requirement of subjective fear or 

apprehension, not just a statement that would objectively 
6

"justify" such a response, Commonwealth v. Ditsch, 19 Mass. App. 

Ct. 1005, 1005 (1985), the jury readily could have found such a 

response here. The victim testified that, with respect to the 

incident in which the defendant, while pointing a knife at her 

neck, told her he would kill her, "[h]e scared [her]." Her 

friend Patrick likewise testified that immediately after that

incident the victim sounded like "[s]omebody scared for her 

life."3 

The defendant also argues with respect to the assault and 

battery charge that the Commonwealth failed to prove the absence 

of justification beyond a reasonable doubt. One form of 

"assault and battery is 'the intentional and unjustified use of 

force upon the person of another, however slight.'" 

Commonwealth v. Burno, 396 Mass. 622, 625 (1986), quoting 

Commonwealth v. McCan, 277 Mass. 199, 203 (1931). The jury 

 

3 The jury acquitted the defendant of attempted murder with 

respect to the choking incident and of assault by means of a 

dangerous weapon with respect to the knife incident. Even if 

the jury had based its threat finding on one or both of these 

incidents, and not the boot incident (which would have been 

enough on its own, since the stalking statute requires only one

threat), and even if doing so would have created an inconsistent 

verdict, which we do not decide, inconsistency of verdicts would 

not in these circumstances undermine the guilty verdict for the 

crime of stalking. See Commonwealth v. Elliffe, 47 Mass. App. 

Ct. 580, 584 (1999) ("[A] defendant is not entitled to relief 

where a jury returns factually inconsistent verdicts; problems 

arise only where verdicts are legally inconsistent -- i.e., 

where, removed from the factual context of the particular case, 

the government could not possibly have proved the elements of 

both crimes with respect to the defendant").
7

could have found beyond a reasonable doubt with respect to the 

incident on April 8, 2011, that the defendant was having an 

argument with the victim, was upset with her, and, therefore, 

grabbed her arm as she was running out the door. (Indeed, they 

could have found that the defendant himself told this to an 

officer of the Burlington police department.) That is an 

intentional and unjustified use of force upon the person of the 

victim. The defendant's argument to the contrary -- that his 

action was justified because "a sudden non-violent grasp at a 

spouse during an argument must fall outside the crime of battery 

because of marital expectations of familiarity" -- has no 

support and is anathema to the modern law of the Commonwealth, 

which recognizes the fundamental humanity, and inviolable 

personal integrity, of all persons, regardless of gender, 

married, or single.

Judgments affirmed.

Order denying motion for 

new trial affirmed.