COMMONWEALTH vs. JASON CUSKEY.

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-517
COMMONWEALTH
vs.
JASON CUSKEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On January 3, 2023, the defendant pled guilty to two counts
of assault and battery with a dangerous weapon on a victim aged
sixty or over, G. L. c. 265, § 15A(a). He received a one-year
probationary sentence, including as a condition of probation
that he not violate any criminal law. On July 26, 2023, a
complaint issued in Winchendon District Court, charging the
defendant with assault and battery on a family or household
member, in violation of G. L. c. 265, § 13M. The probation
department alleged a probation violation for incurring this new
charge.
A probation violation hearing was held at which the
probation officer presented what the defendant characterizes as

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hearsay evidence. The judge found by a preponderance of the
evidence that the defendant had committed the new crime, and
thus violated his probation, and the judge sentenced the
defendant to two years committed in the house of correction. In
this, the defendant's appeal, he argues that the hearsay was not
substantially reliable.
The Commonwealth does not contest that the evidence at
issue is hearsay, and so, for purposes of our decision, we will
assume it is. Hearsay evidence is admissible at probation
violation hearings, at which strict evidentiary rules do not
apply. See Commonwealth v. Durling, 407 Mass. 108, 114 (1990).
Unlike a criminal charge, a probation violation must be proven
only by a preponderance of the evidence. Commonwealth v. Bukin,
467 Mass. 516, 520 (2014). Although the confrontation clause
does not apply, due process requires that, where the
Commonwealth seeks to rely on hearsay in order to demonstrate a
probation violation, it may be admitted and relied upon for
revocation of probation if it "bears substantial indicia of
reliability and is substantially trustworthy." Durling, supra
at 118.
In determining whether hearsay is sufficiently reliable,
the court must examine the totality of the circumstances. In
this case, the first piece of evidence at issue is a video,

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whose provenance is unknown, and which was apparently taken on a
recording device such as a phone, of another video, perhaps a
security camera video. At the hearing it was shown in several
parts.
The defendant appeared before the judge. The judge, after
observing the video and the defendant, concluded that the
defendant was one of the individuals in the video. The video
shows the defendant punch another person multiple times, drag
the person to the floor, and then prevent the person from
fleeing by closing a door through which she was attempting to
leave and then pinning her down on a staircase.
The second piece of evidence is a police report from the
Winchendon Police Department. It states that a person known to
the Commonwealth showed the officer a video showing the victim,
who was identified by name, being assaulted by the defendant,
her former husband. It says the video was taken at an address
where the two live, and it describes what is seen in the video.
It states the officer was told, apparently by the person known
to the Commonwealth, that the incident had just occurred that
evening.
The police report relates that after seeing the video, the
officer called the victim, to whom he had spoken before both in
person and on the phone. The police report states that the

4
officer recognized her voice in the phone call, and that she
confirmed that the assault and battery did happen. It reports,
"She said that after punching her, she was sitting on the steps,
and he held her down with her forearm across her chest." She
further stated that she and the defendant had separated since
his last arrest in 2020, implying that they had been (and
perhaps still were) married.
The officer reported having the defendant arrested and then
contacting the victim again. He reported that, "She said that
he has threatened to kill her in the past, and said that she
thought that she would die tonight."
Because the hearsay statement of the police officer is
contained in a police report and accurately describes the video
seen by the judge, it is substantially reliable. Circumstances
supporting the veracity of the officer's report include that it
is a crime for a police officer to file a false report. See
Durling, 407 Mass. at 121, citing G. L. c. 268, § 6A. The
nested hearsay of the victim, known to the officer, who had met
her in person and spoken to her by phone before and recognized
her voice, was also substantially reliable. The fact that it is
a crime to make a false report of a crime to a police officer
bolsters the reliability of the victim's account contained in
the police report. See Commonwealth v. Nunez, 446 Mass. 54, 59

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(2006); Commonwealth v. Negron, 441 Mass. 685, 691 (2004). Her
corroboration of what happened in the video supports the
conclusion that the video is a substantially reliable
representation of an actual event. And the victim's statement
that it occurred that night ("tonight") supports the judge's
conclusion that this new event occurred the evening in question,
at a time when the defendant was on probation. Although the
person who provided the video is unidentified, the victim's
corroboration that his statements about the video were accurate
supports a conclusion that his hearsay, too, i.e., his
description of who and what the video depicts, is substantially
reliable.
There was, therefore, no error in relying on the hearsay
evidence, and it supports the judge's findings by a
preponderance of the evidence that the defendant committed the
new offense of assault and battery on a family or household
member in violation of his probation.

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We affirm the finding of a probation violation and affirm
the order revoking probation and imposing sentence.
So ordered.
By the Court (Rubin, Sacks &
Smyth, JJ.1),
Clerk
Entered: October 13, 2026.
1 The panelists are listed in order of seniority.