COMMONWEALTH vs. EDWARD K. KOSTEK.

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
25-P-1177
COMMONWEALTH
vs.
EDWARD K. KOSTEK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury found the
defendant, a physical therapist, guilty of three counts of
indecent assault and battery on his patient, Ava.1 Thereafter,
the defendant moved for a new trial, which the judge denied, and
then filed a motion for reconsideration, which the judge also
denied.2 In this consolidated appeal from his convictions and
orders denying his motions for a new trial and reconsideration,
the defendant contends that the Commonwealth elicited evidence
of Ava's multiple complaints in violation of the first complaint
doctrine and improperly elicited evidence solely to appeal to
1 A pseudonym.
2 The motion judge had also presided over the trial.

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juror sympathy. He additionally claims that the judge erred in
denying his motion for a new trial. We affirm.
1. First complaint testimony. The defendant asserts that
the Commonwealth improperly introduced evidence of Ava's
multiple complaints in violation of the first complaint
doctrine. As the defendant did not object to the admission of
this testimony, we review for a substantial risk of a
miscarriage of justice. Commonwealth v. Aviles, 461 Mass. 60,
72 (2011). We discern no such risk.
"Testimony by the recipient of a complainant's first
complaint of an alleged sexual assault regarding the fact
of the first complaint and the circumstances surrounding
the making of that first complaint, including details of
the complaint, is admissible for the limited purpose of
assisting the jury in determining whether to credit the
complainant's testimony about the alleged sexual assault
. . . ."
Mass. G. Evid. § 413(a) (2026). "Testimony from additional
complaint witnesses is not admissible." Commonwealth v. King,
445 Mass. 217, 219 (2005), cert. denied, 546 U.S. 1216 (2006).
A complainant also may not testify about reporting the assault
to anyone other than the first complaint witness. Commonwealth
v. Monteiro, 75 Mass. App. Ct. 489, 493 (2009).
Nevertheless, the first complaint doctrine "does not . . .
'prohibit the admissibility of evidence that, while barred by
the doctrine, is otherwise independently admissible.'" Aviles,
461 Mass. at 69, quoting Commonwealth v. Arana, 453 Mass. 214,

3
220-221 (2009). "Evidence of a victim's state of mind or
behavior following a crime has long been admissible if relevant
to a contested issue in a case." Arana, supra at 225.
Here, on direct examination, Ava testified to the substance
and circumstances of her first complaint, made the day after the
last assault, to her nurse practitioner. The prosecutor also
elicited from Ava that, after her first complaint, she had
additionally reported the assaults to the police and the
defendant's supervisor. After Ava's nurse practitioner
testified to Ava's first complaint, the prosecutor called the
officer to whom Ava had made her statement and elicited from him
that Ava had reported in a quiet, soft voice that she had been
sexually assaulted by the defendant.
Although the defendant raises this claim before us as a
trial error, he previously raised it in his motion for a new
trial as a claim that trial counsel was ineffective for failing
to object to Ava's multiple complaints. Finding that the
defendant's main theory of defense at trial was that Ava
fabricated the assaults to provide a basis for the civil lawsuit
that she eventually filed against the defendant and the provider
for whom he worked, the judge ruled that "the circumstances and
timing of police involvement [was] relevant and admissible, not
as first complaint [testimony] but as an integral part of the

4
Commonwealth's response to the defendant's theory." We discern
no error or abuse of discretion in the judge's ruling,
particularly where she presided over the trial. See Arana, 453
Mass. at 227 (officer's testimony, elicited after first
complaint, about complainant's subsequent complaint and
"demeanor was admissible, not as first complaint evidence but as
evidence relevant to a highly contested issue, namely, whether
[the complainant's] accusations were fabricated to provide a
basis for the civil lawsuit" that complainant had filed). See
also Commonwealth v. Santos, 465 Mass. 689, 700-701 (2013)
(although not first complaint witness, mother's testimony
regarding complainant's appearance and demeanor admissible to
rebut defense theory of fabrication). As the evidence was
admissible, there was no error, and accordingly, there was no
substantial risk of a miscarriage of justice.
The defendant's use of the officer's testimony further
mitigates against any substantial risk of harm. From the
officer to whom Ava made her report, the defendant elicited
portions of Ava's statements that contrasted with her testimony
at trial. He also highlighted investigative steps that the
officer could have taken but did not. In closing argument, the
defendant used these points in support of his theory that Ava
had fabricated the allegations and that the Commonwealth had not

5
met its burden of proof. For these reasons too, the defendant
did not suffer any unfair prejudice, and there was no
substantial risk of a miscarriage of justice. See Commonwealth
v. McCoy, 456 Mass. 838, 850-853 (2010).
2. Improper appeal to sympathy. The defendant claims that
the prosecutor improperly appealed to the jurors' sympathy when,
in response to his question to Ava "how is your neck today," Ava
responded "[e]xtremely in pain. Still not healed." We likewise
review this issue for a substantial risk of a miscarriage of
justice, as the defendant did not object. See Aviles, 461 Mass.
at 72. We again find no such risk.
That Ava's symptoms persisted even after her physical
therapy sessions was relevant to the Commonwealth's theory that
the defendant did not treat Ava but instead used the sessions as
an opportunity to assault her. Her testimony on this point was
also relevant to the contested issue of why Ava returned for
treatment with the defendant even after he had first assaulted
her. See Commonwealth v. Gill, 37 Mass. App. Ct. 457, 464
(1994).
In addition, the judge mitigated any risk of unfair
prejudice by instructing the jury that they must "not permit
sympathy to affect your verdict." We presume the jury followed
that instruction. Commonwealth v. Bryant, 482 Mass. 731, 737

6
(2019). There was no error, and thus, no risk that justice
miscarried.
3. Ineffective assistance of counsel. The defendant moved
for a new trial claiming (among other grounds) that trial
counsel had been ineffective by failing to seek additional
medical records of Ava, failing to interview witnesses, and
failing to call an expert witness. After an evidentiary
hearing, at which the defendant did not testify or call his
trial counsel as a witness, the judge denied the motion. She
also denied the defendant's subsequent motion for
reconsideration.
In reviewing the denial of a motion for a new trial, "we
examine the motion judge's conclusions only to determine whether
there has been a significant error of law or other abuses of
discretion" (citation omitted). Commonwealth v. Miller, 101
Mass. App. Ct. 344, 348 (2022). "Where, as here, the motion
judge was the trial judge, reversal for abuse of discretion is
particularly rare" (quotation, citation, and alteration
omitted). Id.
On a claim of ineffective assistance of counsel, the
defendant must show that counsel's representation fell "below
that . . . [of] an ordinary fallible lawyer" and that such
failure prejudiced the defendant by "likely depriv[ing] the

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defendant of an otherwise available, substantial ground of
defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
"[A]rguably reasoned tactical or strategic judgments" do not
amount to ineffective assistance of counsel unless they are
"manifestly unreasonable" when made (citation omitted).
Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979). As to the
prejudice prong, "there ought to be some showing that better
work might have accomplished something material for the
defense." Commonwealth v. Satterfield, 373 Mass. 109, 115
(1977). The prejudice standard under the second prong is
"effectively the same as the substantial risk of a miscarriage
of justice standard" (quotation and citation omitted).
Commonwealth v. Fredette, 97 Mass. App. Ct. 206, 218 (2020).
a. Failure to subpoena additional medical records of Ava.
The defendant alleged that trial counsel was ineffective for
failing to seek a complete set of Ava's medical records. The
judge denied the defendant's motion, finding that trial
counsel's decision to not seek the complete set was not
manifestly unreasonable and that, in any event, the records
would not have been material to the defense.
After the judge denied the defendant's motion for a new
trial, Ava testified at another proceeding in which the
defendant was charged with similar offenses against a different

8
patient (subsequent trial). At that proceeding, the defendant
had access to Ava's full medical records, portions of which he
used to impeach Ava. On the basis of this impeachment, the
defendant moved for reconsideration in this case. The judge
denied the motion, concluding that "it still does not find that
. . . trial counsel was ineffective." We discern no error.
As the defendant did not call trial counsel as a witness at
the hearing on the motion for a new trial, there is no direct
evidence as to trial counsel's strategic choices.3 Nevertheless,
the judge's finding -- that trial counsel's determination not to
seek Ava's complete record was tactical -- is not without basis.
Trial counsel reviewed a subset of Ava's medical records prior
to trial that had been subpoenaed to the court pursuant to
Mass. R. Crim. P. 17, 378 Mass. 885 (1979). That subset
contained information that the defendant now claims trial
counsel could have used to impeach Ava, namely, that Ava had
received treatment at another physical therapy provider and that
she was a marijuana user. Trial counsel had also spoken several
times prior to trial with the attorney representing the
3 The defendant submitted an affidavit from trial counsel in
support of his motion for a new trial. Although the judge
considered trial counsel's affidavit (along with others
submitted by the defendant) in concluding that the defendant had
raised a substantial issue warranting an evidentiary hearing,
she did not consider them as evidence in deciding the
defendant's motion.

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defendant in the civil lawsuit that Ava had filed against the
defendant. That attorney had received a complete set of Ava's
medical records. Equipped with this information, trial counsel
may well have made a tactical decision that he need not move for
additional portions of Ava's records.
In any event, the judge did not err in ruling that trial
counsel's failure to impeach Ava with notations in Ava's full
medical records that she had previously attended another
treatment provider, had engaged in "binge drinking" a week prior
to an appointment, or was a frequent marijuana user amounted to
prejudice warranting a new trial. Our courts have "applied a
stringent standard of review to claims of ineffective assistance
because of failure to impeach a witness." Commonwealth v.
Jenkins, 458 Mass. 791, 805 (2011). Generally, "[f]ailure to
impeach a witness does not, standing alone, amount to
ineffective assistance." Id. See Commonwealth v. Pina, 498
Mass. 43, 55 (2026). More particularly, "failing to impeach a
witness in a particular way does not constitute ineffective
assistance." Commonwealth v. Gonsalves, 488 Mass. 827, 838
(2022), quoting Commonwealth v. Watt, 484 Mass. 742, 763 (2020).
To begin, trial counsel did inquire of Ava on cross-
examination whether she had consulted with another treatment
provider. Although he did not confront Ava with the relevant

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notation in her medical record after she testified that she had
not attended another provider, trial counsel elicited Ava's
admission that she did not "follow up" with another provider
because she chose to go to the defendant's office as it was
closer and more convenient for her. Trial counsel then argued
in closing argument that, although Ava could have received
treatment at other locations and stopped treatment with the
defendant altogether, she continued to receive treatment from
him so that she could pursue her civil lawsuit. In this
context, presenting the jury with notations in the records that
Ava had attended another treatment provider would have been of
marginal impeachment value.
Nor did the defendant suffer prejudice from trial counsel's
failure to impeach Ava with a notation in her record that she
had engaged in "binge drinking" approximately one week before
her second physical therapy appointment. The judge ruled that,
because there was no evidence that Ava was under the influence
of alcohol at the times of treatment or her report, evidence of
her alcohol use on a prior date would not have been admissible.
See Commonwealth v. Stephens, 44 Mass. App. Ct. 940, 944 (1998).
The judge's ruling was neither an error of law nor an abuse of
discretion. "Because [such] testimony would not have been
admissible at the defendant's trial, we cannot conclude that it

11
would have accomplished something material for the defense such
that the jury verdict would have been different." Commonwealth
v. Weaver, 474 Mass. 787, 813 (2016), S.C., 582 U.S. 286 (2017).
Similarly, the defendant did not show that trial counsel's
failure to elicit evidence of Ava's marijuana use rose to the
level of ineffective assistance of counsel. As there was no
evidence that Ava was under the influence of marijuana at the
times of her treatment or report, the defendant failed to
establish that such a line of questioning would have been
permissible. See Stephens, 44 Mass. App. Ct. at 944. Even
assuming, however, that such evidence would have been
admissible, its value was of marginal significance where neither
the defendant nor Ava's nurse practitioner noted in the medical
records any signs that Ava was impaired during any of her
medical visits. The judge did not commit an error of law or
abuse of discretion in denying the defendant's motion on this
ground. See Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433,
438-439 (2007).4
b. Failure to interview the defendant's coworker. We
likewise discern no error or abuse of discretion in the judge's
4 There is likewise no merit to the defendant's contention,
made in passing in his brief, that Ava's full records "disputed
that [Ava] was unaware of [Ehlers-Danlos Syndrome]." Ava did
not testify that she was unaware of Ehlers-Danlos Syndrome.

12
ruling that the defendant did not meet his burden of showing
that trial counsel's failure to interview one of the defendant's
coworkers was manifestly unreasonable.
The judge's ruling that the coworker's testimony would not
have been admissible as a routine practice or habit was
supported by her finding that the coworker's testimony "did not
shed any light on what the defendant's habit or practice was
regarding where the defendant would treat a patient or whether
he would leave a door open or closed." See Mass. G. Evid.
§ 406(b) (2026).
Similarly, the judge's finding that the coworker's
proffered testimony regarding the defendant's reputation would
not have been admissible was neither an error of law nor an
abuse of discretion. "[T]he trial judge has discretion to
exclude [reputation] evidence if [the judge] determines that it
is based on the opinions of too limited a group." Commonwealth
v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980). Here, although
the coworker testified that she was part of the physical therapy
community, that she was aware of the defendant's reputation
among this community, and that members of the community were in
court in support of the defendant, she did not testify to the
size of the community. See Commonwealth v. Arthur, 31 Mass.
App. Ct. 178, 179-180 (1991) (defendant established community of

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identifiable size through witness testimony). The judge's
finding that the community consisted of ten or eleven therapists
based on the coworker's testimony regarding how many therapists
could be in the suite at a time was not clearly erroneous; and
her ruling, that such a group was too limited to establish a
sufficiently numerous community, was within her discretion. See
LaPierre, supra.
Finally, as the judge noted, the coworker's testimony had
the potential to harm the defendant. Ava testified at trial
that, at each of the three sessions after her initial
consultation, the defendant brought her through an open gym
where a number of patients were receiving treatment to a private
room, closed the door so that it was open approximately one inch
or less, and, after working on her neck area (the location of
her injury) for fifteen minutes, grabbed her buttocks during the
second treatment session, and grabbed her breasts and touched
her inner thigh during the third and fourth sessions.
The coworker testified at the hearing on the motion for a
new trial that therapists generally only met with patients in a
private room during the initial consultation and thereafter at a
patient's election, not the therapist's; that at no point should
a therapist squeeze or hold a patient's buttocks or squeeze a
patient's breasts for treatment; and that touching a patient's

14
thigh by their vagina would not be relevant therapy for injury
to the neck area. Trial counsel may have reasonably anticipated
that the coworker's testimony carried with it the potential for
significant harm. Cf. Commonwealth v. Vinton, 432 Mass. 180,
185 (2000) (counsel reasonably decided against introduction of
evidence that had "potential to backfire on the defendant").
c. Failure to call an expert. The defendant alleged that
trial counsel was ineffective for failing to call an expert to
testify that the defendant's conduct was consistent with
appropriate medical examination for Ehlers-Danlos Syndrome. In
denying the defendant's motion on this ground, the judge found
that the defendant had failed to show that counsel's strategic
decision not to call the witness was manifestly unreasonable or
that the expert's testimony would have effectively impeached
Ava.
Thereafter, at the subsequent trial, the defendant called
the expert witness who had reviewed Ava's treatment records and
opined that the defendant's treatment of Ava had been
appropriate. Citing the expert's testimony at the subsequent
trial as newly available evidence, the defendant moved for
reconsideration of his new trial motion in this case. The judge
denied this motion as well. There was no error or abuse of
discretion.

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Whether to call an expert witness "fits squarely within the
realm of strategic or tactical decisions." Commonwealth v.
Ayala, 481 Mass. 46, 63 (2018). Here, as the defendant did not
call trial counsel to testify at the hearing regarding his
strategic decisions, he failed to meet his burden of showing
that trial counsel's decision not to call an expert was
manifestly unreasonable.5 See Commonwealth v. Diaz, 448 Mass.
286, 289 (2007) (where claim of ineffective assistance of
counsel is "bereft of any explanation by trial counsel for
[their] actions and suggestive of strategy contrived by a
defendant viewing the case with hindsight," such claim is in its
"weakest form" [citation omitted]); Commonwealth v. Alvarez, 62
Mass. App. Ct. 866, 870 (2005).
Moreover, as the judge appropriately concluded, to the
extent that the proffered expert would have testified that the
defendant's examination of Ava was consistent with screening for
Ehlers-Danlos Syndrome, such testimony would not have been
materially helpful to the primary line of the defendant's
5 Indeed, the defendant may have feared that, had he called
trial counsel as a witness at the motion for a new trial, trial
counsel would have testified consistent with what he wrote in
his affidavit, namely, that the final theory of defense was that
Ava's allegations were false; that he had met with the expert on
three occasions; that the expert's testimony would have been
"devastating" to the defense; and that the expert had changed
his original opinion.

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defense, which was that Ava fabricated the assaults. Indeed, as
shown at the subsequent trial, had trial counsel called the
expert, he would have done so at his own peril. The expert's
testimony would have presupposed that at least some of Ava's
testimony regarding the defendant's examinations was credible,
including that the defendant had examined Ava for scars from her
breast augmentation. He also would have run the risk of the
jury hearing an expert witness agree with the prosecutor that it
would have been inappropriate for a physical therapist to grab
or squeeze the breast of a patient who had sustained a neck
injury; that, if a medical professional needs to touch a
patient's breast for any reason, the professional should first
obtain the patient's consent (which Ava testified did not
occur); and that any examination of a patient's breast should be
noted in a medical record (of which there was no notation in
Ava's records).
For these reasons, we cannot say that the alleged
inadequacy of counsel's performance "appears indisputably on the

17
trial record" (citation omitted). Commonwealth v. Zinser, 446
Mass. 807, 811 (2006).
Judgments affirmed.
Orders denying motions for
new trial and for
reconsideration affirmed.
By the Court (Vuono, Meade &
Hillman, JJ.6),
Clerk
Entered: October 9, 2026.
6 The panelists are listed in order of seniority.