A three‑justice appeals panel on Tuesday heard competing arguments over whether the grand jury properly returned two separate life‑felony indictments in Commonwealth v. Caggiano.

Jennifer Peterson, representing Peter Caggiano, told the court the Commonwealth presented a single incident to the grand jury and later changed the theory of prosecution weeks before trial, resulting in convictions on two separate counts. "The grand jury should not have gotten that indictment as it was tried," Peterson said, arguing that the evidence presented at trial differed from what the grand jurors were shown and that the variance prejudiced the defense.

Peterson emphasized the complainant’s SANE interview, quoting the transcript: "she specifically said that he put his finger in my ******, and he licked my ********," and argued that the prosecution obtained two indictments based on an ambiguous grand‑jury exchange rather than distinct, documented theories.

Tracy Kusick, for the Commonwealth, told the panel the grand‑jury transcript and other materials supported probable cause for both counts. "The evidence before the grand jury was a penetration with a finger, a penetration with a tongue," Kusick said, and the indictments track the statutory language that covers both natural and unnatural acts. Kusick also defended closing‑argument remarks and the use of a recorded interview, saying there was no impropriety.

The justices pressed both sides on the legal framework that governs variance between what a grand jury is told and what is proved at trial, including whether the issue is procedural prejudice or a foundational lack of probable cause. The panel asked the defense to identify precise prejudice flowing from the alleged variance and explored distinctions with previous case law discussed in briefs.

The panel took the matter under advisement after oral argument. No ruling was announced from the bench.