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

23-P-772

COMMONWEALTH

vs.

FREDERICK PINNEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant was 

convicted of manslaughter and sentenced to serve nine to ten 

years in State prison.1 He moved for a stay of execution pending 

appeal, which was denied by the trial judge in a written 

decision and order. The defendant then filed with this court a 

motion for a stay pursuant to Mass. R. A. P. 6 (b), 481 Mass. 

1608 (2019). A single justice vacated the trial judge's order 

and remanded the matter for further consideration. After an 

evidentiary hearing at which the defendant's pretrial probation 

1 He received credit for more than six and one-half years' time 

served. The defendant was charged with murder and held in 

custody in 2014. Although the case proceeded to trial in 2016, 

a mistrial caused it to be returned to pretrial status, where it 

remained during extensive proceedings. The defendant continued 

to be held in custody until January 2021, when he was released 

on conditions pending retrial. He was placed in custody again 

after conviction in March 2023. 
2

officer testified, the trial judge again denied the motion in 

another written decision. The defendant then filed another 

motion for a stay pursuant to Mass. R. A. P. 6 (b) in this 

court. That motion was denied by a different single justice, 

who also denied the defendant's subsequent motion for 

reconsideration. The matter before us now is the defendant's 

consolidated appeal from the single justice's orders denying the

motion for stay and the motion for reconsideration. We affirm. 

Discussion. We review a single justice's decision on a 

motion for stay of execution pending appeal for error of law or 

abuse of discretion. See Commonwealth v. Nash, 486 Mass. 394, 

412 (2020). A single justice considering a motion for stay may 

proceed in either of two ways: (1) "independent or de novo 

mode," in which the single justice considers the matter anew or

(2) "appellate review mode" in which the single justice simply 

reviews the correctness of the decision of the trial court. Id.

at 410. Here, the single justice took the latter course and, 

discerning no error of law or abuse of discretion, denied the 

motion for a stay. We likewise discern no error of law or abuse 

of discretion in the single justice's orders denying the motions 

for a stay and for reconsideration.

A trial judge's consideration of a motion for a stay of 

sentence pending appeal is governed by Mass. R. Crim. P. 31 (a), 

as appearing in 454 Mass. 1501 (2009), which provides that, if a 
3

sentence of imprisonment is imposed upon conviction of a crime, 

"the entry of an appeal shall not stay the execution of the 

sentence unless the judge imposing it . . . determines in the 

exercise of discretion that execution of said sentence shall be 

stayed pending the determination of the appeal." Thus, the 

grant of a stay is an exception to the rule and committed to the 

sound discretion of the judge. See Christie v. Commonwealth, 

484 Mass. 397, 400 (2020). In exercising discretion, the trial 

judge is guided by our case law which provides that the judge 

should evaluate whether the defendant's appeal presents "an 

issue which is worthy of presentation to an appellate court, one 

which offers some reasonable possibility of a successful 

decision in the appeal" as well as "the possibility of flight to 

avoid punishment; potential danger to any other person or to the 

community; and the likelihood of further criminal acts during 

the pendency of the appeal" (citations omitted). Id. The 

defendant bears the burden on both issues. See Nash, 486 Mass. 

at 404, 406.

In this case, the trial judge determined that the defendant 

had failed to meet his burden on both issues; however, the 

single justice denied the defendant's motion for a stay after 

review of the security issue alone. See Commonwealth v. 

McDermott, 488 Mass. 169, 174 (2021) (affirming single justice 

denial of stay based on security, even though defendant raised 
4

issue worthy of appellate review); Commonwealth v. Springfield

Terminal Ry. Co., 77 Mass. App. Ct. 225, 230 (2010) ("Because 

the defendants have failed to demonstrate that the single 

justice abused her discretion in denying the motion for security 

reasons, we need not decide whether the appellate issues they 

raise offer some reasonable possibility of a successful decision 

on appeal"). We therefore proceed to the issue of security.

As to this issue, a trial judge is to consider "the 

possibility of flight to avoid punishment; potential danger to 

any other person or to the community; and the likelihood of 

further criminal acts during the pendency of the appeal"

(citation omitted). Nash, 486 Mass. at 405. The judge's 

calculus may take account of "the seriousness of the crime of 

which the defendant was convicted, the strength of the evidence 

presented at trial, and the severity of the sentence that the 

judge imposed." Id. Relevant factors may include familial 

status, roots in the community, employment, prior criminal 

record and general attitude and demeanor. See Christie, 484 

Mass. at 400. In the end, the trial judge is "to employ . . . 

'sound, practical judgment and common sense'" in determining the 

security risk posed. Nash, supra, quoting Commonwealth v. 

Levin, 7 Mass. App. Ct. 501, 505 (1979).

Here, the trial judge found that the defendant was 

convicted of an extremely serious crime involving the death of a 
5

woman,2 and that evidence against him at trial was strong. 

Acknowledging that the defendant did not flee or commit other 

crimes during the period of time that he was on pretrial 

release, the judge reasoned that the defendant was facing a 

charge of murder in the first degree at the time and had 

incentive to conform his behavior in order to present the best 

face at trial. The judge also considered that his family and 

roots were out of State and that there were insufficient 

mechanisms to monitor his behavior and secure his presence in 

the Commonwealth. Again, the judge acknowledged that the 

defendant had been allowed to live out of State while on 

pretrial release with no apparent issues. However, the judge 

was concerned with the quality of this pretrial supervision, 

essentially consisting of remote check-ins and self-reporting. 

Given the role that substance abuse played in the crime,3 the 

judge was particularly concerned about the probation 

2 The woman was found naked on the floor of the defendant's 

bedroom with several visible wounds and was later determined to 

have died from strangulation. See Commonwealth v. Pinney, 97 

Mass. App. Ct. 392, 394-395, 395 n.2 (2020).

3 In his motion papers, the defendant argued that the jury's 

verdict indicated that the jurors determined that the 

defendant's substance abuse played a significant role in his 

crime. 
6

department's inability to provide actual personal supervision

under the release conditions proposed.4 

Despite the reasoning of the trial judge in this regard, 

the defendant contends that the judge abused his discretion by 

"disparaging" the favorable testimony of the defendant's 

probation officer and "ignor[ing]" the officer's substantial 

training and experience. He also complains that the judge 

"pa[id] short shrift" to a supporting affidavit of a woman with 

whom the defendant lived and for whom he worked. The short 

answer to the defendant's claims is that weight and credibility 

are for the fact finder. See Commonwealth v. Garner, 490 Mass. 

90, 94-96 (2022) (weight and credibility determinations made 

upon evidentiary hearing committed to discretion of fact

finder). It was within the judge's discretion to give little 

4 The defendant criticizes the trial judge's finding that the 

defendant's sobriety, a condition of probation, was never 

verified. He argues that since he was not required to submit to 

drug and alcohol testing as a condition of probation, the 

requirement imposed by a probation officer would have been 

unlawful. We do not view the judge to have been suggesting drug 

and alcohol testing. Rather, the defendant's sobriety could 

have been verified by personal observation, which was lacking 

due to remote supervision.

Similarly, the defendant challenges the judge's finding 

that his compliance with curfew was never verified. He argues, 

in a rather circular fashion, that the fact that the defendant 

gave no cause to require the probation officer to verify curfew 

supports his lack of a security risk. Again, we view the 

judge's finding in this regard as simply support for his 

skeptical view of the probation officer's report.
7

weight to a probation officer who testified that the defendant 

was a model probationer, where supervision was minimal. 

Likewise, it was within the judge's discretion to give little 

weight to an affidavit promising employment to the defendant if 

it was in the nature of ad hoc jobs. 

The defendant also challenges the trial judge's reasoning 

that the defendant's risk of flight was elevated after 

conviction for manslaughter. The defendant argues that while on 

pretrial release, he had an increased incentive to flee because 

he was facing the possibility of a life sentence without parole. 

After conviction of manslaughter, he contends, he had a 

decreased incentive to flee because he faced only a few years 

imprisonment (due to time already served). One could also view 

an incentive to flee as lesser pretrial because of the 

possibility of acquittal and greater after conviction because of 

the certainty of imprisonment. In any event, this factor may be 

looked at in many different ways; the question is whether the 

way the judge viewed it was outside the range of reasonable 

alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 

(2014) (abuse of discretion standard). It was not. See Garcia

v. Commonwealth, 486 Mass. 341, 348-349 (2020) (observing that 

judge could have reasonably concluded that three-year prison 

sentence remaining to serve -- out of five-year sentence, could 

have provided significant incentive to flee).
8

Finally, the defendant argues that the trial judge's order 

"suffers from the same defects as were present in Nash," where 

the Supreme Judicial Court held that a single justice of this 

court abused her discretion in reviewing the security risk by 

relying "very heavily on the serious and abhorrent nature" of 

the defendant's crimes and appeared not to give much weight to 

other factors. Nash, 486 Mass. at 414. We disagree. The trial 

judge in this case devoted two short sentences (within five 

pages of analysis devoted to the security risk), to the crime of 

which the defendant was convicted. The remainder of the 

analysis did focus on other factors including the defendant's 

untenable request to reside out of State (where supervision 

would be hampered), that neither his family members nor his 

current "significant other" offered a proposal to house the 

defendant within the Commonwealth, and the lack of any evidence 

regarding substance abuse treatment. The judge's analysis of 

the security issue was thus not "underinclusive" as in Nash.5

Id.

As to the defendant's motion for reconsideration presented 

to the single justice, the defendant provided the single justice 

5 The defendant also argues that the trial judge misstated the 

evidence before him by indicating that he had "insufficient 

information" regarding the defendant's medical condition. 

Although the defendant had submitted a medical record indicating 

laboratory results, the import was far from clear. 
9

with a transcript of the evidentiary hearing on the motion for 

stay before the trial judge and argument regarding claimed 

contradictions between the evidence and the trial judge's 

findings. As the submission merely buttressed the original 

motion for stay, the single justice did not abuse his discretion 

in denying the motion for reconsideration. See Liberty Square 

Dev. Trust v. Worcester, 441 Mass. 605, 611 (2004) (no error in 

denying motion for reconsideration which seeks merely "second 

bite at the apple"). 

As the trial judge did not abuse his discretion, the single 

justice similarly did not abuse his discretion in denying the 

defendant's motions for a stay and for reconsideration. 

Orders of the single justice 

denying motions for a stay 

and for reconsideration 

affirmed. 

By the Court (Vuono, Singh, & 

Englander, JJ.6), 

Assistant Clerk 

Entered: January 9, 2024.

6 The panelists are listed in order of seniority.