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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS GEHAN,
Appellant No. 401 EDA 2014
Appeal from the Judgment of Sentence August 26, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0011617-2012
CP-51-CR-0005013-2012
BEFORE: BOWES, OTT AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 07, 2015
Thomas Gehan appeals from the judgment of sentence of three to six
months imprisonment followed by two years probation imposed after
Appellant was convicted of two counts of terroristic threats and one count of
simple assault. We affirm the convictions, but vacate the sentence and
remand for an evidentiary hearing.
Based upon events that occurred on March 7, 2012, Appellant was
charged at criminal action number 11617 of 2012 with terroristic threats,
contempt for violating an order, and harassment. Due to an incident
occurring on March 14, 2012, he was charged at criminal action number
5013 of 2012 with aggravated assault, contempt for violating an order,
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possession of instrument of crime, terroristic threats, reckless
endangerment, and two counts of simple assault. The matters were
consolidated and proceeded to a nonjury trial, where the victim Yolanda
Zandona testified as follows.
In March 2012, she and Appellant had mutual protection from abuse
(“PFA”) orders against each other. They had dated from November 2010 to
October 2011. On March 7, 2012, Ms. Zandona, who was approximately
seven months pregnant with Appellant’s son, was residing with her former
boyfriend, Steven Carroll, and Steven’s mother Ana on East Hazard Street in
Philadelphia. That day, Ana received a telephone call and started to scream.
Ms. Zandona ran to Ana, who appeared frightened and upset and said that
Appellant had threatened her life.
The telephone rang again, and Ms. Zandona answered it. Appellant
was on the line, and he “started threatening. And said that he has a new
baby on the way. And that he was going to hurt me and Ana Carroll.” N.T.
Trial (Waiver), 3/25/13, at 17. Ms. Zandona continued that Appellant “said
he was going to hurt me in any type of way. Shoot me.” Id. at 18. Ms.
Zandona was aware that Appellant had a “drawer full of knives,” including
switchblades, since she viewed those items when she lived with Appellant.
The victim immediately telephoned police and reported the crime. There
was a stipulation that a police witness would have verified that on March 7,
2012, Ana Carroll and Ms. Zandona filed a police report against Appellant.
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At approximately 6:30 p.m. on March 14, 2012, Ms. Zandona was
watching television at the East Hazard Street residence when she heard Ana
screaming just outside the front door. Ms. Zandona went to the door and
saw Appellant “out there yelling at [Ana], calling her a bitch.” Id. at 25.
Appellant had a knife in his hand. Id. at 27. Appellant started swinging the
knife back and forth toward Ana while he was standing about two feet from
her, and he was saying that “he was going to f ing kill her[.]” Id. at 28-
29.
Ms. Zandona confronted Appellant and asked what he was doing since
he had a PFA preventing him from being in proximity to her. Appellant
swung the blade at Ms. Zandona. Ms. Zandona felt that her unborn baby
was in danger because Appellant had “said that there is [a] new one on the
way by his ex-girlfriend Gina. And he does not want mine anymore.” Id. at
30-31. Ana’s two sons chased Appellant away with a bat.
Appellant did not testify in his defense, but argued that Ms. Zandona
was not credible. The trial court determined otherwise and convicted
Appellant of two counts of terroristic threats and one count of simple assault.
It acquitted Appellant of the remaining charges. The court ordered a pre-
sentence report, and, on August 26, 2013, the matter proceeded to
sentencing. Appellant orally raised a weight-of-the evidence claim at that
time. He pointed out that the victim had a conviction involving crimen falsi,
conspiracy to commit robbery, and Appellant maintained that there were
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inconsistencies in her testimony. Appellant continued that Ms. Zandona had
a “clear motive to fabricate, based on the relationship she had had with my
client, his new relationship[.]” N.T., 8/26/13, at 9. Appellant also pointed
to the lack of corroborative evidence, such as telephone records and other
witnesses to the two events.
The court rejected his motion and sentenced Appellant to three to six
months imprisonment on one count of terroristic threats, a consecutive
period of probation of two years for simple assault, and no further penalty
for the other count of terroristic threats. Based upon these convictions,
Appellant’s parole and probation in a separate case were revoked, and he
began serving a state sentence in that matter.
On May 19, 2014, after this appeal was filed from the judgment of
sentence, Appellant filed with this Court an application to remand this matter
for an evidentiary hearing based upon the existence of after-discovered
evidence. Appellant averred that counsel had subpoenaed transcripts of
telephone calls that Appellant made from prison because Appellant, between
February 7, 2014, to March 7, 2014, telephoned Ms. Zandona approximately
twelve times and Ms. Zandona admitted that she fabricated her trial
testimony.1
____________________________________________
1
Appellant submitted a compact disc with the telephone conversations.
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Specifically, Appellant averred the following. During a 2:20 p.m. call
on February 7, 2014, Appellant told Ms. Zandona that he was serving a
lengthy prison term since the convictions herein resulted in revocation of
both his parole and probation in the other criminal action. Ms. Zandona
responded, “[M]y bad. I didn't know, like I really didn't. I was angry. I was
angry at you for abandoning me.” Petition To Remand Record To Trial Court
For The Filing Of A Post-Sentence Motion For A New Trial On The Ground Of
After-Discovered Evidence And To Vacate Briefing Schedule at ¶ 11.
During a February 20, 2014 call, Appellant accused Ms. Zandona of
fabricating her testimony based upon the demands of an unidentified man
that Appellant referred to as “dude.” Id. Ms. Zandona then responded, “I
was pregnant, first of all and you f ing left me. So I was hurt, hurt people
hurt people. Come on now you were with that big-ass f ing big-forehead
f ing Gina." Id. During that same call, Appellant again stated that Ms.
Zandona had lied “about me on the stand, because dude told you to
Yolanda, you don't think that is f ed up, like come on." Id. Ms. Zandona
answered, “[I]t is f ed up, it is.” Id. Ms. Zandona then said, “[O].k., I will
tell the DA and tell them that the dude had a f ing gun up to my head and
threatened to kill me and f ing made me f ing tell on you and lie about
you[.]” Id.
Based upon these telephone calls, Appellant petitioned this Court for a
remand for the conduct of an evidentiary hearing to determine if Appellant
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was entitled to a new trial. This Court denied that petition without prejudice
to Appellant’s right to re-assert his position before this panel. Appellant filed
his brief, raising a weight claim and again seeking remand for an evidentiary
hearing based upon after-discovered evidence:
1. Did not the trial court err by denying appellant's motion
for a new trial, as the verdict was against the weight of the
evidence where the Commonwealth presented the testimony of
only one incredible and uncorroborated witness at appellant's
trial and a new trial is necessary in the interests of justice?
2. Should not this matter be remanded to the trial court
for a hearing on after-discovered evidence because while this
case was pending on appeal telephone conversations between
appellant and the complainant in this matter, the
Commonwealth's only trial witness, took place in which the
complainant admitted to fabricating her trial testimony and these
telephone conversations were lawfully recorded?
Appellant’s brief at 3.
Since the trial judge rejected Appellant’s weight claim, the merits of
that contention is subject to the following standard of review:
A verdict is not contrary to the weight of the evidence
because of a conflict in testimony or because the reviewing
court on the same facts might have arrived at a different
conclusion than the fact-finder. Rather, a new trial is warranted
only when the jury's verdict is so contrary to the evidence that
it shocks one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail. Where, as here, the judge who presided at trial ruled on
the weight claim below, an appellate court's role is not to
consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate review is
limited to whether the trial court palpably abused its discretion
in ruling on the weight claim.
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Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).
Indeed, “One of the least assailable reasons for granting or denying a new
trial is the lower court's determination that the verdict was or was not
against the weight of the evidence and that new process was or was not
dictated by the interests of justice.” Id.
Appellant first posits that Ms. Zandona’s testimony was incredible on
its face. Appellant’s brief at 17-21. This position fails since it is beyond cavil
in this Commonwealth that it is solely within the province of the factfinder to
determine a witness’s credibility. Commonwealth v. Page, 59 A.3d 1118,
1130 (Pa.Super. 2013) (“A determination of credibility lies solely within the
province of the factfinder.”) Commonwealth v. Blackham, 909 A.2d 315,
320 (Pa.Super. 2006) (“The weight of the evidence is exclusively for the
finder of fact, which is free to believe all, part, or none of the evidence, and
to assess the credibility of the witnesses. . . . It is not for this Court to
overturn the credibility determinations of the fact-finder.”) (emphasis
added). Since we are not permitted to rule that Ms. Zandona’s testimony
was unworthy of belief, we reject this assertion.
Appellant next suggests that Ms. Zandona should not have been
believed due to her motive to fabricate the charges and due to
inconsistences between her trial testimony and her statements to police as
well as her preliminary hearing testimony. Appellant’s brief at 21-22. This
averment likewise must fail in that inconsistencies in a witness’s testimony
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and a witness’s bias both relate to that person’s credibility.
Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (“Questions
concerning inconsistent testimony and improper motive go to the credibility
of the witnesses. This Court cannot substitute its judgment for that of
the jury on issues of credibility.”) (emphasis added; citations omitted).
The trial court heard about the inconsistencies and Appellant argued that the
witness was biased. The trial court, sitting as factfinder, had to determine
whether she was credible despite these facts. We cannot substitute our
judgment in this respect for that of the trial court.
Appellant also suggests that his convictions cannot stand due to the
lack of corroborating evidence. Appellant’s brief at 22-23. It is well-
established that the uncorroborated testimony of a single person is sufficient
to support a conviction. E.g. Commonwealth v. Trippett, 932 A.2d 188
(Pa.Super. 2007) (uncorroborated testimony of a victim, if believed by
factfinder, can sustain a conviction); Commonwealth v. Lamb, 455 A.2d
678, 686 (Pa.Super. 1983) (“It is clear that the uncorroborated testimony of
a co-conspirator, if believed, is sufficient to support a conviction in a criminal
conspiracy prosecution.”); Commonwealth v. Budd, 140 A.2d 346
(Pa.Super 1958) (uncorroborated testimony of drug-addict witness was
sufficient to sustain conviction).
Thus, the fact that there was no corroborating evidence does not
render Appellant’s convictions infirm or allow this Court to overturn the trial
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court’s credibility determination. We have reviewed Ms. Zandona’s
testimony, which we must credit under applicable precedent. If credited, we
perceive of no abuse of discretion in the trial court’s conclusion that the
verdict did not shock its sense of justice. Hence, we reject Appellant’s first
allegation.
Appellant also seeks a remand for a new trial based upon the
telephone conversations that he had with Ms. Zandona after this appeal was
filed. We note that, “A post-sentence motion for a new trial on the ground
of after-discovered evidence must be filed in writing promptly after such
discovery.” Pa.R.Crim.P. 720(C). Additionally, “after-discovered evidence
discovered during the direct appeal process must be raised promptly during
the direct appeal process, and should include a request for a remand to the
trial judge[.]” Pa.R.Crim.P. 720, Comment. Hence, Appellant’s request is
properly before this court. Commonwealth v. Perrin, 108 A.3d 50
(Pa.Super. 2015).
As our Supreme Court has observed: “The four-prong test for
awarding a new trial because of after-discovered evidence is well settled.
The evidence: (1) could not have been obtained prior to trial by exercising
reasonable diligence; (2) is not merely corroborative or cumulative; (3) will
not be used solely to impeach a witness's credibility; and (4) would likely
result in a different verdict.” Commonwealth v. Castro, 93 A.3d 818,
821 (Pa. 2014).
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Appellant proffers that, at an evidentiary hearing, he will ask the trial
court to both review “the telephone calls and entertain testimony from Ms.
Zandona herself.” Appellant’s brief at 29. The Commonwealth has indicated
that it “does not oppose a remand to allow defendant to present the
testimony of Ms. Zandona at an evidentiary hearing.” Commonwealth’s brief
at 13. The Commonwealth concurs that such a hearing is appropriate under
this Court’s decision in Perrin.
Perrin was a remand from our Supreme Court for reconsideration in
light of Castro, supra, of this Court’s grant of an evidentiary hearing based
upon after-discovered evidence. In Castro, the Court opined that the
contents of a newspaper article were not evidence upon which an evidentiary
hearing could be awarded in this context. In Perrin, we again remanded for
a hearing. Therein, the defendant’s convictions were premised primarily
upon the testimony of a single witness, who acknowledged at trial that his
testimony was obtained by the Commonwealth in exchange for leniency in a
pending federal matter. After the defendant’s trial and sentencing, that
witness told a cellmate that he had fabricated his testimony against the
defendant and that the defendant was not involved in the crime in question.
The cellmate informed the Federal Bureau of Investigation, which prepared
an affidavit outlining the cellmate’s report and forwarded the affidavit to the
Commonwealth. The district attorney, in turn, gave the affidavit to the
defendant.
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We observed that the first prong of the after-discovered evidence test
was satisfied since the cellmate did not tell the FBI about the witness’s
admissions until after the defendant was sentenced. We further observed
that the second element of the test was met as there was no proof offered at
trial indicating that defendant had not participated in the crime.
We also ruled that evidence that a witness had fabricated his
testimony, in its entirety, could not, as a matter of law, be characterized as
merely impeachment evidence and that an evidentiary hearing was required
so that that determination could be made by the trial court. We opined that
the affidavit did much more than suggest that the witness could have been
cross-examined. Instead, the affidavit indicated that the witness committed
perjury and that the defendant was innocent of the crime. We noted that
the document in question was an affidavit, which does constitute evidence,
in contrast to the contents of a newspaper article, which was rejected as
evidence in Castro. We concluded that evidence that the key witness at
trial lied about the defendant’s participation in it might have changed the
outcome at trial. Hence, we ruled that an evidentiary hearing was
warranted.
Herein, Appellant’s proof arose after sentencing and is after-discovered
evidence. It was not corroborative or cumulative to other evidence
produced at trial. It did not merely involve impeachment since Ms. Zandona
stated in the telephone calls that she fabricated her testimony against
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Appellant in revenge for his abandonment of her and due to the coercion of
an unnamed male. If Ms. Zandona did lie, such an admission would likely
have changed the outcome at trial. Since Appellant has satisfied the
requirements for an evidentiary hearing on his claim, as outlined by Perrin,
we will grant relief.
The trial court must conduct an evidentiary hearing and receive
testimony from Ms. Zandona and listen to the telephone conversations in
order to determine if Appellant is entitled to a new trial. If the trial court
concludes that a new trial is not warranted, the sentence can be reinstated.
Petition for remand granted. Judgment of sentence vacated. Case
remanded for further proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2015
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