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

22-P-893

COMMONWEALTH

vs.

ROBERT HERSEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of indecent 

assault and battery on a person over fourteen, dissemination of 

matter harmful to minors, photographing an unsuspecting nude 

person, and photographing sexual or other intimate parts of a 

child. On appeal, the defendant claims error by a judge other 

than the trial judge (motion judge) in denying the defendant's 

motion to suppress his recorded statement, and error by the 

trial judge in denying the defendant's motion for relief from 

prejudicial joinder. We affirm.

Suppression. We recite the facts as the motion judge found 

them, supplemented by our independent review of the audio-visual 

recording of the defendant's statement. Commonwealth v. 
2

Daveiga, 489 Mass. 342, 346 (2022); Commonwealth v. Davis, 98 

Mass. App. Ct. 604, 612 (2020).

A little before 3 A.M. on September 28, 2018 (the same year 

as all subsequent dates), police responded to a 911 call of a 

sexual assault on a victim by his boxing coach. A Springfield 

police officer generated an incident report detailing 

accusations by a seventeen year old, whom we shall call "Adam." 

Adam said the assault happened the night before and named the 

defendant, his coach, as the perpetrator. A little after 

3 A.M., another youth, whom we shall call "Frank," arrived at 

the police station and disclosed a past sexual assault.1 In an 

incident report, Frank named the defendant as the assailant.

At 5:50 that evening, police were dispatched to Belmont 

Avenue in response to two 911 calls. One call was from a 

relative of Adam's who said that she and others were there with

the defendant and keeping him until police arrived. The other 

call was from the defendant requesting that officers be sent to 

his location because of disgruntled persons who had congregated 

there. When the officers arrived, one went to speak with the 

crowd while the other went to speak with the defendant.

1 The judge made no finding about Frank's age, but a 

sergeant testified that Frank was seventeen.
3

When the officers asked the defendant "what was going on; 

why he had called 911," he "began talking about the crowd and 

how they had been harassing him and alleging that he had 

sexually abused someone." After about ten minutes, the 

defendant was handcuffed behind his back, placed in a cruiser,

and told he was being detained but was not under arrest. The 

defendant then made unsolicited statements "that on the previous 

evening he had been contacted by [Adam] and had given him a 

ride. He denied having committed any sexual assault of [Adam]."

Reasoning that by this point the defendant was in custody and no

Miranda warnings had been given, the motion judge suppressed

those statements.2

While the defendant was detained in the cruiser, a sergeant 

on scene communicated with a major crime sergeant at the 

station, where Frank, who had returned to the station as events 

on Belmont Avenue were unfolding, was being interviewed. When 

the sergeants made the connection between the morning's incident 

reports, the events on Belmont Avenue, and Frank's interview, 

they consulted an assistant district attorney, and a 

determination was made that there was probable cause for an 

2 The motion judge declined to suppress the defendant's 

statements to first responders reasoning that they were not the 

product of a custodial interrogation. On appeal, the defendant 

does not challenge that ruling.
4

arrest. At 6:50 P.M., the defendant was arrested and 

transported to the station. An officer advised the defendant of 

his Miranda warnings during his booking procedure. Additionally, 

an officer provided the defendant an opportunity to make a 

telephone call. The defendant advised the police that he wanted 

to call his mother but did not know the number and could not 

look it up because his cell phone was seized as evidence. He

did not attempt to call an attorney. Eventually, he was asked

whether he wanted to talk and said he did. At 11:25 P.M., an 

interview commenced. The interview was recorded, and we have 

independently reviewed the recording.

A detective recited Miranda warnings to the defendant, who 

said he understood. The defendant read the waiver of rights 

form aloud, and confirmed his understanding as the major crime 

sergeant entered the room. The defendant also signed the

Miranda form.

The defendant stated that he was forty years old, had a 

college education, and was not under the influence of drugs or 

medication. He spoke for close to two hours, during which time 

he was relaxed and never appeared to be, or expressed being, in 

physical or mental distress. During the interview, he stated

thrice that he understood his right to remain silent and wait 

for a lawyer. The defendant "wanted to talk," however, because
5

he was "an honest person" and because he "realized that this was 

a nice little setup." Offering details about Frank after being 

asked if he wanted to discuss anyone other than Adam, the 

defendant explained that Frank was one of the defendant's 

boxers, that previously (the defendant did not say when), the 

defendant picked up Frank in his van and took Frank to a 

"massage parlor," and that about two weeks ago, Frank's friend 

Adam joined the gym. The defendant further explained that just 

before 10 P.M. on September 27, the defendant offered to pick up 

Adam and take him to a massage parlor. When they could not get 

a massage, the defendant drove Adam to a park, where there was 

physical contact between Adam and the defendant's erect penis. 

The defendant dropped Adam off at home and started receiving

messages on his cell phone from Adam accusing the defendant of 

forcing Adam to engage in sexual conduct. The defendant stated 

that he found the accusations "disturbing," because in his view 

he had not forced Adam to do anything, nor would he ever put his 

boxers at risk. The defendant said he was there "to tell you 

what really happened," which was nothing sexual with Frank and

something sexual with Adam that Adam had initiated. Gesturing 

with his hand and turning his head, the defendant stated that if 

by giving a statement "I incriminated my way -- and here's the 

camera -- if I incriminate my in any way, okay, then so be it."
6

On appeal, the defendant contends that his Miranda waiver 

and recorded statement were tainted by the coercive 

circumstances of his detainment on Belmont Avenue and "a sense 

of futility that he ha[d] already incriminated himself" there. 

Commonwealth v. Thomas, 469 Mass. 531, 551 (2014); quoting

Commonwealth v. Prater, 420 Mass. 569, 581 (1995). He claims 

that the coercion was aggravated by his inability to make a 

phone call and the failure of police to tell him of his right to

a prompt arraignment. The motion judge found no intentional 

deprivation of the defendant's right to make a phone call and no 

violation of his rights regarding prompt arraignment. Passing 

over the merits of those findings, the defendant challenges the 

motion judge's ultimate ones, that the waiver of rights and 

recorded statement were knowingly made and "clearly voluntary."

We see no flaw in the motion judge's analysis. If the time 

in the holding cell was enough for the defendant to realize he 

was the victim of a "setup" by two teenagers, it was enough to 

remove any coercive taint from the events on Belmont Avenue.

Our review of the video footage allows us to conclude that the 

defendant did not feel he had previously made incriminating 

statements that would make further efforts to withhold 

information futile. Commonwealth v. Rosa-Roman, 485 Mass. 617, 

631 (2020). Both times the defendant acknowledged giving Adam a 
7

ride on September 27 and denied sexually assaulting Adam, but 

"the similarity ends there." Commonwealth v. Watkins, 375 Mass. 

472, 482 (1978), S.C., 486 Mass. 801 (2021). Five hours after 

he was detained, and four hours after he was arrested, booked, 

and placed in a holding cell, the defendant described to 

detectives (who were not present at Belmont Avenue where the 

initial statements were made) to doing much more with Adam than 

giving him a ride. In addition, he added information about 

Frank, not because "the cat was already out of the bag," but

because he was "eager to assert his innocence." Rosa-Roman, 

supra at 632. See Commonwealth v. Harris, 75 Mass. App. Ct. 

696, 700 (2009) (passage of two hours and involvement of 

different police personnel broke sequence of events).

The defendant was "of sufficient age, educational 

background, and intelligence to comprehend the meaning of his 

actions" in waiving his Miranda rights and giving a statement, 

Commonwealth v. Mandile, 397 Mass. 410, 413-414 (1986), S.C., 

403 Mass. 93 (1988), and in fact he did comprehend, as evidenced 

by his repeated assertions to that effect, his refusal to answer 

questions he thought did not "pertain" to what he was there to 

discuss, and his failure to challenge as involuntary a consent 

to search his cell phone or his provision of a deoxyribonucleic 

acid (DNA) sample during the interview, also following 
8

recitations of rights by the detectives and signings of waivers. 

See Commonwealth v. Delossantos, 492 Mass. 242, 247 (2023) 

(Commonwealth must demonstrate not only what warnings were 

provided to defendant but also that he understood them). The 

defendant never expressed regret for having spoken with the 

detectives or appeared to struggle with his decisions, 

Commonwealth v. Richards, 485 Mass. 896, 909 (2020), and there 

is no claim that his waiver or incriminating statements were 

tied to false representations, promises, assurances, or other 

"problematic tactics" by the detectives. Commonwealth v. Baye, 

462 Mass. 246, 257 (2012). In sum, the totality of the 

circumstances supports the motion judge's findings of 

voluntariness beyond a reasonable doubt. Commonwealth v. 

Tremblay, 480 Mass. 645, 656 & n.8 (2018); Mandile, supra at 

413.

Joinder. The defendant was indicted for what he called

"sexual abuse" crimes committed against Adam, Frank, and another 

youth between June 1 and September 28; and "sexual image" crimes 

committed between April 1 and September 28 based on images 

recovered from the defendant's cell phone. Describing those 

images as having been secretly taken by the defendant of boxers 

in his gym and arguing that all charges arose from the 

defendant's scheme to create "opportunities for his own sexual 
9

gratification through and with the students he coached," the 

Commonwealth sought joinder under Mass. R. Crim. P. 9, 378 Mass. 

859 (1979). The defendant responded with a motion for relief 

from prejudicial joinder and to sever the sexual image charges, 

arguing -- as he does on appeal -- that they were not 

sufficiently related to the sexual abuse charges to overcome the 

compelling prejudice from a joint trial. See Commonwealth v. 

Pillai, 445 Mass. 175, 180 (2005). After a pretrial hearing, 

the Commonwealth's motion was marginally endorsed "allowed" and 

the defendant's endorsed "denied."

We conclude the trial judge did not clearly abuse her

discretion. Pillai, 445 Mass. at 180. From what appears to 

have been before her when she was making the decision,3 the

victims of all charged crimes were the same gender, near the 

same age, and had similar relationships to the defendant. 

Commonwealth v. Foreman, 101 Mass. App. Ct. 398, 407 (2022). In 

each case, the defendant was alleged to have used his position 

of trust to gain access to and commit sexual crimes against the 

victims. Commonwealth v. Mamay, 407 Mass. 412, 416 (1990). 

Evidence of the other charged conduct would have been admissible 

at separate trials because the offenses were close enough in 

3 We note that the defendant's brief recites facts from 

trial, not before the judge at the time of her decision on the 

joinder motion.
10

time to be probative and it "shows a common scheme and a pattern 

of operation that tends to prove all the indictments," 

Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995); as such,

"we cannot say that any prejudice from the joinder was so great 

that the defendant was prevented from obtaining a fair trial."

Commonwealth v. Wilkerson, 486 Mass. 159, 176 (2020).

For all these reasons, the judgments are affirmed.

So ordered.

By the Court (Green, C.J., 

Walsh & Smyth, JJ.4),

Clerk

Entered: August 19, 2024.

4 The panelists are listed in order of seniority.