COMMONWEALTH vs. SUSAN FAPPIANO.

KANTROWITZ, J. At the time of the criminal offenses on October 20, 1996, the defendant, Susan Fappiano, was the mother of three young children who were living with her: five year old Jeffrey Columbus, three year old Shy-la Harper, and fifteen month old Clyde Harper, Jr. She repeatedly beat them, eventually killing Clyde (she was tried as both a principal and a joint venturer). [Note 1] On October 1, 1998, she was convicted of various offenses, including murder in the second degree, and those convictions were affirmed in an unpublished memorandum and

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order. [Note 2] See Commonwealth v. Fappiano, 57 Mass. App. Ct. 1105 (2003). [Note 3]

On November 16, 2005, Fappiano filed a motion for a new trial based upon newly discovered evidence, to wit, that she was suffering from battered woman syndrome at the time of the trial, which condition rendered her incompetent to participate in her defense and which, if known at the time of trial, would have been a real factor in the deliberations of the jury. The denial of that motion forms the basis of this appeal. [Note 4] We affirm.

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According to Fappiano's affidavit submitted in support of the motion for a new trial, prior to Alberto Torres, she had had romantic relationships with three other men: Robert Gosselin, [Note 5] Jeffrey Columbus, [Note 6] and Clyde Harper, Sr., [Note 7] each of which included instances of physical, mental, and sexual abuse. Fappiano met Alberto Torres through Harper, when Torres and Harper were inmates together at the Hampden County house of correction. After Torres was released, he began living with Fappiano and her three children and began physically abusing Fappiano "almost immediately." Torres and Fappiano both hit the children. Torres hit Shy-la on the leg with a belt, tied Jeffrey up with a telephone extension cord, and knocked Jeffrey off the kitchen chair where he was doing homework. Fappiano's affidavit states that on the day Clyde died, Torres slapped Clyde and stood with his foot on Clyde's back.

"Whether an appeal is from the granting or the denial of a motion for a new trial, an appellate court will examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion."

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Commonwealth v. Grace, 397 Mass. 303 , 307 (1986). " 'The decision of the motion judge is entitled to special deference if that judge also was the trial judge [as is the case here].' Commonwealth v. Figueroa, 422 Mass. 72 , 77 (1996)." Commonwealth v. Buck, 64 Mass. App. Ct. 760 , 762 (2005).

In her motion, Fappiano claimed that she was entitled to a new trial because of newly discovered evidence, specifically, a long history of physical, sexual, and emotional abuse she endured which resulted in her suffering from battered woman syndrome. [Note 8] In Commonwealth v. Pike, 431 Mass. 212 , 221 (2000), which was decided after Fappiano's trial, the Supreme Judicial Court discussed the relationship between a claim of battered woman syndrome and newly discovered evidence. In describing the syndrome, the court wrote:

"Battered woman syndrome has been described as a ' "series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives." State v. Kelly, 97 N.J. 178, 198 (1984). "Among the characteristics of such abused women are a decrease in self-esteem, an emotional dependence upon the dominant male and [a] type of psychological 'learned' helplessness arising out of an inability to predict or control the violence directed against them. Numbed by a dread of imminent aggression, these women are unable to think clearly about the means of escape from this abusive family existence; and this emotional paralysis is often reinforced by their traditional beliefs about the sanctity of home and family and their false hopes that things will improve." People v. Torres, 128 Misc. 2d 129, 132 (N.Y. Sup. Ct. 1985).' Commonwealth v. Moore, 25 Mass. App. Ct. 63 , 66 (1987)."

Commonwealth v. Pike, supra.

In Pike, the defendant was convicted of murder in the second degree arising out of a plot, with her boyfriend, to break into

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the home of the victim, wait for him to arrive home, kill him, and steal his car. Id. at 213. The defendant filed a motion for a new trial, claiming she suffered from battered woman syndrome, which was newly discovered evidence because the syndrome prevented her from disclosing this evidence to her attorney. Id. at 217.

The court recognized the potential viability of such a claim, reasoning "that a common characteristic of battered women is a 'learned helplessness,' which manifests itself in an inability of the woman to perceive herself as abused, or to gain help by communicating the abuse to others." Id. at 222. See Commonwealth v. Conaghan, 433 Mass. 105 , 109-110 (2000) (divided court held that defendant, who had filed motion for new trial claiming she was incompetent due to battered woman syndrome when she tendered her plea to manslaughter four years earlier, was entitled to competency evaluation, pursuant to G. L. c. 123, § 15[a]).

As she had "the inability to perceive herself as abused and to communicate the abuse to others," Fappiano argues that she was unable to disclose her past abuse to her attorney before trial, and, consequently, was unable to assist counsel "in preparing a defense that served her best interests." Commonwealth v. Conaghan, supra at 109, quoting from McMaugh v. State, 612 A.2d 725, 732 (R.I. 1992). In a supporting affidavit, her trial counsel stated that he had difficulty obtaining information from Fappiano because of her emotional state, and that she had significant gaps in her memory. He further stated that her inability to communicate precluded him from being aware that she was suffering from battered woman syndrome, and consequently, he did not defend her on that ground.

The judge rejected Fappiano's argument, noting that prior to trial Fappiano was examined on two separate occasions by two different court-appointed experts and in both instances was found to be competent. [Note 9] Further, the judge, in denying Fappiano's motion, indicated that "my own observations of the defendant during her trial satisfied me that she was fully competent. She consulted [with] her trial attorney as various witnesses testified to matters critical to the issue of her culpability. Counsel consulted

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with her just before he would conclude the examination of each witness and oftentimes the consultation would be followed by counsel asking several more questions of the witness."

While the judge's rejection of Fappiano's competency argument may be viewed as an implicit rejection of her contention that she suffered from battered woman syndrome, [Note 10] we need not reach that issue, as we determine that any such evidence was not newly discovered.

"A defendant seeking a new trial on the basis of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Pike, 431 Mass. at 218. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001) ("The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done"). "[T]he allegedly new evidence . . . must . . . have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial . . . . The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence." (Emphasis original.) Commonwealth v. Weichell, 446 Mass. 785 , 798-799 (2006), quoting from Commonwealth v. Grace, 397 Mass. at 306.

Fappiano has failed to "establish that the evidence was unknown to the defendant or trial counsel and not reasonably discoverable at the time of trial." Commonwealth v. Shuman, 445 Mass. 268 , 271 (2005). She and her attorney were aware, prior to trial, of several instances of abuse involving Torres. In statements

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given to the police shortly after the incident, Fappiano disclosed that Torres physically harmed her when she "scared him once in the shower," and he hit her head against the wall on another occasion; Torres mainly subjected her to emotional abuse; and on the day of the incident she "wanted to call 911" but was afraid that Torres would hit her. These statements were admitted during the trial. In addition, at sentencing, counsel argued that Fappiano's "choice of men was poor, and that's putting it mildly"; that she was "weak because she doesn't have great self-esteem, and men she chose were not men who in any way were going to do positive things for them, their children or for Miss Fappiano" (emphasis added). Counsel's choice of words at sentencing appear to indicate a wider knowledge of Fappiano's abuse history than was disclosed during the trial itself. [Note 11] Compare Commonwealth v. Pike, 431 Mass. at 217, 220 n.7 (defendant disclosed abuse for first time at motion for new trial, although she asked defense counsel prior to trial whether evidence of abuse "would make a difference in her case").

Although the trial predated the Pike and Conaghan decisions, the significance of Fappiano's abuse history and the potential applicability of battered woman syndrome to this defendant were well known at the time. [Note 12] In Commonwealth v. Lazarovich, 410 Mass. 466 , 473-474 (1991), released seven years prior to Fappiano's trial, the Supreme Judicial Court assumed, without deciding, that evidence of battered woman syndrome may be relevant in prosecution for abuse by a mother of her child. See

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G. L. c. 233, § 23F, inserted by St. 1996, c. 450, § 248 (admissibility of past physical, sexual, or psychological abuse of defendant). Thus, at the time of trial, not only was there knowledge of the existence of abuse, but further evidence was "reasonably discoverable." [Note 13] Commonwealth v. Weichell, 446 Mass. at 798, quoting from Commonwealth v. Grace, 397 Mass. at 306. Fappiano has failed to establish, as was her burden, "that reasonable pretrial diligence would not have uncovered the evidence." Id. at 799, quoting from Commonwealth v. Grace, supra.

Conclusion. As Commonwealth v. Pike, 431 Mass. at 222, counsels, "in appropriate cases, evidence of battered woman syndrome may constitute 'newly discovered' evidence, even though the condition may have existed prior to, or at the time of, trial." This is not such a case. The order denying the motion for a new trial is affirmed. [Note 14]

So ordered.