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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS S. GERVASI :
:
Appellant : No. 821 MDA 2016
Appeal from the PCRA Order May 2, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000440-2010
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 14, 2017
Thomas S. Gervasi appeals from the order entered May 2, 2016,
dismissing his petition for relief pursuant to the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In December 2011, following an eight-day jury trial, Appellant was
convicted of six counts of arson, endangering persons; one count of arson,
endangering property; two counts of arson, recklessly burning or exploding;
one count of insurance fraud; and four counts of criminal mischief.1
Appellant’s was subsequently sentenced to an aggregate term of five to ten
years of incarceration followed by one year of special probation.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3301(a)(1)(i), 3301(c)(3), 3301(d)(2), 4117(a)(3),
3304(a)(1), respectively.
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This Court affirmed the judgment of sentence on direct appeal, and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Gervasi, 82 A.3d 1058 (Pa. Super. 2013)
(unpublished memorandum), appeal denied, 84 A.3d 1062 (Pa. 2013). On
July 28, 2014, Appellant timely filed a PCRA petition pro se. In September
2015, through appointed counsel, an amended PCRA petition was filed. In
November 2015, an evidentiary hearing was held, at the conclusion of which
the PCRA petition was denied.
On May 18, 2016, Appellant timely appealed the dismissal of his PCRA
and thereafter filed a court-ordered 1925(b) statement. The court issued a
responsive opinion.
Appellant raises the following issues on appeal:
I. Whether the PCRA court committed reversible error by
dismissing Mr. Gervasi’s PCRA claim that trial counsel was
ineffective for failing to object to and/or request a mistrial
following the overwhelmingly prejudicial closing argument
by the District Attorney?
II. Whether the PCRA court committed reversible error by
dismissing Mr. Gervasi’s PCRA claim that trial counsel was
ineffective for failing to request a Frye hearing regarding
the validity and reliability of the Commonwealth’s cause
and origin expert?
III. Whether the PCRA court committed reversible error by
dismissing Mr. Gervasi’s PCRA claim that trial counsel was
ineffective for failing to object to the introduction of a flood
of evidence regarding his financial difficulties?
IV. Whether the PCRA court committed reversible error by
dismissing Mr. Gervasi’s PCRA claim that trial counsel was
ineffective for failing to request an appropriate cautionary
instruction regarding the pre-trial experiment of the
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recreation of the fire conducted by the Commonwealth’s
expert?
V. Whether the PCRA court committed reversible error by
dismissing Mr. Gervasi’s PCRA claim that trial counsel was
ineffective for failing to file a pre-trial motion to suppress
physical evidence where law enforcement investigators
performed warrantless post-fire searches and
investigations on the property weeks after the fire?
VI. Whether the PCRA court committed reversible error by
dismissing Mr. Gervasi’s PCRA claim that trial counsel was
ineffective for failing to file a pre-trial motion to dismiss
the charges based upon an illegitimate pre-trial delay?
Appellant’s Brief at 4.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
Here, Appellant asserts several claims of ineffective assistance of
counsel. We presume counsel is effective. Commonwealth v.
Washington, 927 A.2d 586, 594 (Pa. 2007). To overcome this presumption
and establish the ineffective assistance of counsel, a PCRA petitioner must
prove, by a preponderance of the evidence that: “(1) the underlying legal
issue has arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner from
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counsel’s act or omission.” Commonwealth v. Johnson, 966 A.2d 523,
533 (Pa. 2009) (citations omitted). “A petitioner establishes prejudice when
he demonstrates that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. A claim will be denied if the petitioner fails to meet any one
of these requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267
(Pa. Super. 2008) (citing Commonwealth v. Natividad, 938 A.2d 310, 322
(Pa. 2007)); Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the well-reasoned opinion authored by the Honorable
Margaret Bisignani Moyle of the Court of Common Pleas of Lackawanna
County, dated July 15, 2016. We conclude that Judge Bisignani’s opinion is
dispositive of the issues presented in this appeal. Accordingly, we adopt the
opinion as our own for purposes of further appellate review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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I J COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS
I I PENNSYL v ANIA : OF LACKAWANNA COUNTY
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v.
I , CRIMINAL DIVISION
i I THOMAS GERVASI
Defendant 2010 CR440
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! OPINION
11 Bisignani Moyle, J.
I I. I PROCEDURAL HISTORY r-;,»
11 .. . ;::
j On December 21, 2011, after an eight day jury trial before this C~:t~·:t~e : ... ,.·.
,· ..··,
I Defendant Thomas Gervasi (hereinafter "Petitioner") was adjudged guq_w:_o~six (6;
i Z~2 ~ ... · .:;
I counts of Arson-Endangering Persons (18 Pa.C.S. §3301(a)(l)(i)), oni(i_jfqunt~f
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11 Arson--Endangering Property (18 Pa.C.S. §330l(c)(3)), two (2) counts of~~on :_c
I,
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11 Reckless Burning or Exploding (18 Pa.C.S. §330l(d)(2)), one (1) count oflnsurance
Ji Fraud (18 Pa.C.S. §4117(a)(3)), and four (4) counts of Criminal Mischief (18 Pa.C.S.
1 · §3304(a)(l)); fourteen (14) counts in all, stemming from his involvement in the June
! 17, 2008 fire of Petitioner's property located at 1021 Mark A venue in Scranton, PA. As
a consequence of the jury's verdict, Petitioner was sentenced on March 16, 2012 to an
JI aggregate sentence of five (5) years to ten (10) years of incarceration at a state
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11 correctional facility to be followed by one (1) year of special probation. Soon
I [ thereafter, Petitioner submitted post-sentence motions which were denied by this Court
i I The Petitioner filed a timely direct appeal. On July 8, 2013, the Pennsylvania Superior
11 Court affirmed the judgment of sentence. See No. 1533 & 1566 MDA 2012. The
I I Pennsylvania Supreme Court subsequently denied Petitioner's Petition for Allowance of
11 Appeal on January 15, 2014.
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11 On July 28, 2014, Petitioner filed a pro se Petition for Relief under the Post
11 Conviction Relief Act ("PCRA"). On August 4, 2014, Kurt Lynott, Esq. was appointed
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!I; i as PCRA counsel and on October 2, 2014, an Amended PCRA Petition was filed
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11 alleging trial counsel's ineffectiveness. Attorney Lynott, by virtue of a prose petition,
I was later discharged as counsel. On May 27, 2015, Edward J. Rymsza, Esq. entered his
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1 appearance on Petitioner's behalf. On September 14, 2015, an amended PCRA petition
l was filed. An evidentiary hearing was held on November 20, 2015. Petitioner's trial
I. II counsel, Paul J. Walker, Esq., was called to testify. Both parties have submitted
I I memoranda in support of their respective positions, and for the reasons outlined below,
11 the Petition for Post-Conviction collateral relief is denied.
ti :
I I II. :FACTUAL BACKGROUND
lI The evidence offered at trial and in various pretrial proceedings demonstrated as
I follows:
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On June 17, 2008, a fire broke out at I 021 Mark A venue in Scranton. Shortl y
1 after the fire was reported, the Scranton Fire Department was dispatched to the scene.
(N.T. 12/13/11 at pg. 71). When the Fire Department arrived on the scene, they not
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I only found both the residence and garage at 1021 Mark Avenue on fire, but also the
I \neighboring residences at 1023-1025 Mark Avenue. (Id. at 83-84). While fighting the
11 fire, Scranton Fire Fighter Paul Schirra suffered injuries to his shoulder and had to be
! treated by paramedics on site. (Id. at 129-32). Also injured as a result of the fire were
'iI I Samantha McDonald and her infant son, Nathan Lacomis, residents of 1021 Mark
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j I Avenue, who were treated at CMC Hospital in Scranton for their injuries. (N.T.
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I I 12/14/11 at pg. 80). In addition, others present on the scene during the fire were Tracy
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also a resident of 1021 Mark Avenue; Otto Vasquez, resident and owner of
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! 1023 Mark Avenue;
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and Jolene and Duey Belles, residents of 1025 Mark A venue.
I None of these residents were injured. (N.T. 12/14/11 at pg. 18-45, 108-49); (N.T.
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I I 12113/11 at pg. 68-329). However, the fire destroyed their personal property; some
! I residents lost most of their possessions. (N.T. 12/14/11 at pg. 28, 51-53, 84).
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Pennsylvania State Trooper Russell Andress and Scranton Fire Detective Martin
I Monahan investigated the fire. They discovered that the fire started in the garage
I attached lo 1021 Mark A venue. (N. T. 12/19/1 1 al pg. 185); (N. T. 12/16/11 at pg. 190-
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91). On multiple occasions, the officers spoke with the Defendant, who was the owner
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11 and landlord of l 021 Mark Avenue during the time that the fire took place. (N.T.
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i I 12/19/11 at pg. 179-183, 187-95); (N.T.12/16/11 at 185-223). During their
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J j conversations the Defendant maintained that, although he was present at 1021 Mark
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when the fire was started, he did not know how the fire in the garage began.
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! J The Defendant thought that it was either the catalytic converter in his Cadillac
11 Escalade, which was parked in the garage at the time, or an old chain saw, which was
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11 also in the garage at the time. He had trouble starting the chainsaw that day. (N .T.
,,
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I : 12116111 at pg. 1 ss-89).
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J ! As the diligent and thorough investigation continued, Trooper Andress and Det.
l Il Monahan determined that neither the catalytic converter in the car, nor the defective
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I! I chain saw was the cause of the fire. (N.T. 12/19/11 at pg. 9-207); (N.T. 12/16/11
J at
! I pg. 189-223). Moreover, during the course of the investigation, Trooper Andress
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I became aware of the circumstances surrounding the Defendant's financial situation at
I the time of the fire. Trooper Andress discovered that the Defendant had filed for
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11 bankruptcy in 2004 and was discharged unsuccessfully on June 12, 2008, just five (5)
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fl days before the fire. (N.T. 12/14/11 at pg. 259-99). Also, the Defendant owned
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numerous properties that were in foreclosure at the time of fire, including I 021 Mark
I A venue, in addition to multiple liens and late credit card and mortgage payments.
I (N.T. 12/19/11 at pg. 220-21); (N.T. 12/14/11 at pg. 175-81). At the conclusion of the
I investigation, Trooper Andress declared the fire an arson, and the Defendant was
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11 arrested on January 21, 2010. (Dock. pg. 1-2, Dec. 10, 2010); (N.T. 12/19/11 at pg.
I so).
I III. SUMMARY OF ISSUES RAISED ON APPEAL
11 In his Amended PCRA Petition, Petitioner asserts the following issues which
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11 are summarized by this court:
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!, 1I 1) Trial counsel was ineffective for failing to object to and/or request a
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mistrial in connection with alleged prejudicial statements made during
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II the Commonwealth's closing argument.
2) Trial counsel was ineffective for failing to request a Frye hearing.
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3) Trial counsel was ineffective for failing to file a motion to suppress
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I! evidence.
II 4) Trial counsel was ineffective for failing to object to evidence and/or
I' failing to request a cautionary instruction regarding Petitioner's financial
condition.
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I• 5) Trial counsel was ineffective for failing to request an appropriate
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i ! cautionary instruction relating to Trooper Andress' pretrial experiment.
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11 6) Trial counsel was ineffective for failing to file a Pretrial Motion to
11 Dismiss the Criminal Information,
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I I IV. STANDARD OF REVIEW
I "In reviewing the propriety of the PCRA court's denial ofa petition for relief the
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j [ Appellate Court] is limited to determining whether the record supports the court's
j I findings, and whether the order is otherwise free of legal error. The [ Appellate Court]
11 grants great deference to the findings of the PCRA court if the record contains any
! I support for those findings."
! I
~ommonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
11 Ct. 2001) citing Commonwealth v. Allen, 732 A.2d 582 (Pa. 1999); Commonwealth
11 v. Bell, 706 A.2d 855 (Pa.Super. 1998), appeal denied, 732 A.2d 611 (1998). Further,
II "there is no absolute right to a hearing pursuant to the PCRA. Rather, the post·
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! conviction court may elect to dismiss a petition if it bas thoroughly reviewed the
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I, claims and determined that they are utterly without support in the record."
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! j ~_Qmmonwealth v. Brown, 767 A.2d 576, 580 (Pa. Super. 2001) citing
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I I Commonwealth v. Neal, 713 A.2d 657, 660 (Pa.Super. 1998) quoting Commonwealth
i I Y· Schultz, 707 A.2d 513, 5 6 (Pa.Super. 1997) ( internal citation omitted).
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!l II In Pennsylvania, it is well settled that the appropriate analysis for a claim of
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ineffective assistance of counsel is the following three prong test: 1) whether the
! J underlying claim has arguable merit; 2) whether the course selected by counsel had
11 some reasonable basis designed to effectuate the client's interests; and 3) whether the
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11 defendant was actually prejudiced by the ineffectiveness. Commonwealth v.
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Il Khalil, 8 06 A.2d 415, 4 21-4 22 (Pa.Super. 2002), appeal denied, 818 A.2d 5 03 (Pa.
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I I 2003). There is a presumption that until proven otherwise, counsel has acted
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11 effectively and in the best interest of the defendant. Id. It is the PCRA petitioner who
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11 bears the burden of proving a claim of ineffective assistance of counsel. Id.
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If the issue underlying the charge of ineffectiveness is not of arguable merit, counsel
. I will not be deemed ineffective for failing to pursue a claim that lacks merit.
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l j Commonwealth v. Fletcher, 750 A.2d 261, 274 (Pa. 2000), cert. denied, 531 U.S.
1.
II, j 1035 (2000); Commonwealth v. Carson, 741 A.2d 686, 697 (Pa. 1999), cert.
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! denied, 530 U.S. 1216 (2000). Further, if the PCRA petitioner has not met the
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J i prejudice prong, the claim of ineffectiveness may be dismissed on that basis alone and
11 the court need not first determine whether the first and second prongs have been
met. .Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995), citing Strickland v.
11 }\Tashil}g!911, 466 U.S. 668, 697 (1984). Moreover, counsel will not be deemed
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11 ineffective for pursuing a particular strategy, as long as the course chosen was
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11 reasonable. Commonwealth v. Laird, 726 A.2d 346, 357 (Pa. 1999) citing
! ~ommonwealth v. Ly, 599 A.2d 613, 618 (Pa. 1991).
ll i V. DISCUSSION
]I iI
l! A. PROSECUTORIAL COMl\ilENT
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I Petitioner claims that trial counsel was ineffective for failing to object to and/or
I I request a mistrial in connection with the following statement made by the prosecutor
!I
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j c unng is c osmg argument:
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i !I But what I want you to take with you is the picture of the individuals
!I sitting in the courtroom in the third row that were displaced, almost
!. killed as a result of this fire when you go back and think about this.
jI Because it's their faces that you should be thinking about because they
j ,1 were the one's [sic] who were affected as a result of this fire. And hold
I that individual responsible for what he did. Thank you.
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11 (N.T. 12/21/11 at pg. 116).
lIi! Petitioner contends that trial counsel was ineffective for failing to object, request
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If a mistrial and/or request a curative instruction following this comment. With regard to a
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11 claim of prosecutorial misconduct in a closing statement, it is well settled that "the
11 prosecutor is allowed to vigorously argue his case so long as his comments are
!11! supported by the evidence or constitute legitimate inferences arising from that
! j evidence. In considering a claim of prosecutorial misconduct, the court shall center its'
! I
11 inquiry on whether the defendant was deprived of a fair trial, not deprived of a perfect
JI one. Thus, a prosecutor's remarks do not constitute reversible error unless their
I unavoidable effect ... was to prejudice the jury, forming in their mind fixed bias and
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i i hostility toward the defendant so that they could not weight the evidence objectively
11 and render a true verdict." ~ommonwealth v. Bozic, 997 A.2d 1211, 1229 (Pa.Super.
I i
2010) (internal citations omitted). A prosecutor does not engage in misconduct when
J: I his statements are based on
t
. the evidence or made with oratorical flair. ------
Commonwealth
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'II 1~@.Y, 978 A2d 1015, 1020 (Pa.Super. 2009).
11 Petitioner asserts that the subject remarks were prejudicial, inflammatory and
1111objectionable
on several levels, Namely, the Petitioner alleges that the comments were
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! used to invoke the sympathy of the jury for the victims by improperly injecting an
! I irrelevant and broader issue than the Petitioner's guilt or i1111~ce11ce. He contends that
] I the prosecutor's statement that the residents were "almost killed" was factually
11 dishonest, and since the evidence was not, in fact, "overwhelming" it ultimately misled
11 the jury. Final] y, he points out that the comments were the final words of the closing
11 argument made approximately three days prior to Christmas, therefore appealing to a
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! "heightened sensitivity" for the residents being homeless as a result of the Petitioner's
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actions.
11 In its response, the Commonwealth highlights the failure of trial counsel to object
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I to the statement as he did not believe the comments were inflammatory or
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I! objectionable. Furthermore, the Commonwealth argues that the remarks were a fair
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I j comment on the_ evidence, a fair response to the arguments of defense counsel, and an
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! i appropriate exercise or oratorical flair. See Commonwealth v. Jones, 683 A.2d 1181,
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! 1199 (Pa.1996). It is important to note that several firefighters were injured during the
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11 course of fighting the fire. In fact, Commonwealth witness Detective Martin Monahan
11 testified that in the hundreds of fires he had investigated, this was one of the hottest.
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I I Several people were displaced from the homes and two received hospital treatment,
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!. I including an infant for smoke inhalation. That same infant was almost dropped from a
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111 second floor as several witnesses encouraged his mother to do. Accordingly, the
prosecutor's statement that people were "almost killed" was within the permissible
boundaries of courtroom rhetoric. However, the Petitioner fails to mention that during
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J I closing arguments, the prosecutor admitted to the jury that the Petitioner