Com. v. Gennaro, T. ( 2016 )

J-S50040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
THOMAS GASPARE GENNARO
Appellant No. 1929 MDA 2015
Appeal from the Judgment of Sentence December 24, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005116-2012
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 13, 2016
Appellant, Thomas Gaspare Gennaro, appeals from the judgment of
sentence imposed after a jury convicted him of stalking and harassment.1
After careful review, we affirm.
The underlying action was commenced by the filing of a criminal
complaint at Docket No. 5116-2012 in which Appellant, from June 3–5,
2012, was alleged to have “engaged in a course of conduct or repeatedly
communicated to his estranged wife” by calling her cell phone “13 times
over the course of 37 hours while a no contact Protection from Abuse (PFA)
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2709.1(a)(2) and 2709(a)(7).
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order was in effect.” Criminal Complaint, 6/19/12, at 2. With respect to this
this complaint, Appellant was charged with stalking and harassment.2
A trial was held from November 6–8, 2013, and Appellant was found
guilty.3 On December 24, 2014, the trial court sentenced Appellant to seven
years’ probation on the underlying docket, to run consecutive to a sentence
of time-served that was imposed on separate charges at Docket 698-2013.4
Appellant did not file a timely appeal.
On July 23, 2014, Appellant filed a petition for post-conviction relief,
which ultimately resulted in Appellant’s direct appeal rights being reinstated
nunc pro tunc. Appellant was also permitted to file a nunc pro tunc post-
sentence motion, which Appellant filed on May 6, 2015, and in which he
alleged that his stalking conviction was against the weight and sufficiency of
the evidence presented at trial. On October 2, 2015, the trial court denied
Appellant’s post-sentence motion, and issued a memorandum opinion.
Appellant filed a notice of appeal on November 2, 2015.
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2
Separate from the docket in this appeal, Appellant was charged with
stalking and harassment at Docket 5118-2012, relative to his alleged actions
on May 24-28, 2012; and with stalking and harassment at Docket 698-2013,
for incidents alleged to have occurred between July 27, 2012 and October
19, 2012. The charges on all three dockets were consolidated for trial.
3
Appellant was acquitted of the charges at Docket 5118-2012, and
convicted of both charges at Docket 698-2013.
4
The harassment charge merged with the stalking charge for purposes of
sentencing.
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On appeal, Appellant presents two issues for our review:
I. IS THE VERDICT AGAINST THE WEIGHT OF THE
EVIDENCE WHERE THE VICTIM’S TESTIMONY WAS
NOT CREDIBLE BECAUSE SHE DID NOT REPORT THE
PHONE CALLS TO POLICE UNTIL LATER, SHE
EXAGGERATED THE NUMBER OF CALLS, THERE
WERE NO THREATS, AND THERE WAS NO EVIDENCE
OF INTENDED OR ACTUAL SUBSTANTIAL
EMOTIONAL DISTRESS?
II. IS THERE INSUFFICIENT EVIDENCE FOR A
CONVICTION OF STALKING WHERE THE EVIDENCE
AT TRIAL DID NOT SHOW THAT APPELLANT HAD THE
INTENT TO CAUSE THE VICTIM SUBSTANTIAL
EMOTIONAL DISTRESS?
Appellant’s Brief at 4.
Preliminary, with regard to Appellant’s two issues challenging the
weight and sufficiency of the evidence, we note the following:
The distinction between these two challenges is critical. A
claim challenging the sufficiency of the evidence, if
granted, would preclude retrial under the double jeopardy
provisions of the Fifth Amendment to the United States
Constitution, and Article I, Section 10 of the Pennsylvania
Constitution, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct.
2211, 72 L.Ed.2d 652 (1982); Commonwealth v. Vogel,
501 Pa. 314, 461 A.2d 604 (1983), whereas a claim
challenging the weight of the evidence if granted would
permit a second trial. Id.A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt.
Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d
1167 (1993). Where the evidence offered to support the
verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature,
then the evidence is insufficient as a matter of law.
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Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876(1975). When reviewing a sufficiency claim the court is
required to view the evidence in the light most favorable to
the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d
630 (1991).
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there
is sufficient evidence to sustain the verdict.
Commonwealth v. Whiteman, 336 Pa.Super. 120, 485
A.2d 459 (1984). Thus, the trial court is under no
obligation to view the evidence in the light most favorable
to the verdict winner. Tibbs, 457 U.S. at 38 n. 11, 102
S.Ct. 2211. An allegation that the verdict is against the
weight of the evidence is addressed to the discretion of the
trial court. Commonwealth v. Brown, 538 Pa. 410, 648
A.2d 1177 (1994). A new trial should not be granted
because of a mere conflict in the testimony or because the
judge on the same facts would have arrived at a different
conclusion. Thompson, supra. A trial judge must do
more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he
were a juror. Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence do not sit as
the thirteenth juror. Rather, the role of the trial judge is
to determine that “notwithstanding all the facts, certain
facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny
justice.” Id.
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (footnote
omitted).
Because Appellant’s insufficiency argument goes to the legal question
whether he could be convicted of the charged offense, we address that
question first. Appellant asserts the evidence failed to establish that he
communicated to his estranged wife with an intent to cause her substantial
emotional distress. Appellant’s Brief at 11-12; 19-21. Appellant states,
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“[a]t best, in the case at hand, the evidence shows that she received a total
of approximately 37 phone calls from [Appellant] over a 3-day period, in
which he told her that he was in the hospital and was about to undergo
heart surgery, or that he was in jail, or getting arrested for a traffic ticket.
There were no threats made in any of the calls or voicemails, and [she] did
not answer many of the calls.” Id. at 21. Appellant concludes that his
conviction “is based on conjecture and speculation and not on reasonable
inferences made from the evidence presented by the Commonwealth.” Id.
The Commonwealth responds that the evidence was sufficient to
support Appellant’s stalking conviction, and specifically avers that Appellant’s
allegation that he did not intend to cause the victim substantial emotional
distress is belied by the record. See Commonwealth’s Brief at 17. The
Commonwealth observes that although the time period from June 3-5, 2012
is “at the center of the instant appeal . . . the victim’s testimony should not
be considered in vacuum [because] the [June] phone calls were a
continuation of a series of events that, although separated for legal purposes
by different docket numbers, at times were referred to generally by the
victim.” Id. at 23.
When reviewing a sufficiency of the evidence claim, this Court must
review the evidence and all reasonable inferences in the light most favorable
to the Commonwealth as the verdict winner, and we must determine if the
evidence, thus viewed, is sufficient to enable the fact-finder to find every
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element of the offense beyond a reasonable doubt. Commonwealth v.
Goins, 867 A.2d 526, 527–528 (Pa. Super. 2004) (citations omitted). The
fact-finder is free to believe all, part, or none of the evidence presented. Id.
at 528. This Court may not substitute its judgment for that of the fact-
finder, and if the record contains support for the verdict, we may not disturb
the verdict. Id.The crime of stalking is defined as follows:
(a) Offense defined.--A person commits the crime of
stalking when the person []:
...
(2) engages in a course of conduct or repeatedly
communicates to another person under circumstances
which demonstrate or communicate either an intent to
place such other person in reasonable fear of bodily injury
or to cause substantial emotional distress to such other
person.
18 Pa.C.S. § 2709.1. Appellant does not dispute that he engaged in a
course of contacting his estranged wife between June 3-5, 2012, when there
was a PFA order prohibiting such contact. N.T., 11/6-8/15, at 199. Rather,
he contends that the evidence does not support the jury’s inference that he
intended to cause substantial emotional distress.
We agree with the Commonwealth’s observation that the testimony of
Appellant’s estranged wife did not always focus on specific dates, but it
nevertheless generally addressed the impact of Appellant’s actions and
supported his underlying conviction. For example, Appellant’s estranged
wife testified:
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[I]t’s been obvious that he’s stated several times that he
will never give up or stop. He states reconciling [sic] when
it comes to me, and I did believe those things in the past
and I know them to be true. I truly believe that he will not
stop and that’s frightening to me that, you know, I will
spend the rest of my life [sic].
N.T., 11/6-8/15, at 174. Consistent with the foregoing, all of the evidence,
viewed most favorably to the Commonwealth as verdict winner, was
sufficient to support the jury’s reasonable inference that Appellant intended
to cause his estranged wife substantial emotional distress, and was therefore
guilty of stalking beyond a reasonable doubt.
In his other issue, Appellant claims that even if the evidence was
sufficient to support a guilty verdict, his stalking conviction was against the
weight of the evidence, and he therefore should receive a new trial. A court
may award a new trial because the verdict is against the weight of the
evidence only when the verdict is so contrary to the evidence as to shock
one’s sense of justice, such that “right must be given another opportunity to
prevail.” Commonwealth v. Foster, 764 A.2d 1076, 1083 (Pa. Super.
2000). The evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court. Commonwealth v. Ross, 856
A.2d 93, 99 (Pa. Super. 2004). In addition, where the trial court has 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. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003).
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Rather, appellate review is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim. Id.Appellant asserts that his stalking conviction “is so contrary to the
weight of the evidence that it shocks the conscience, and a new trial should
be awarded.” Appellant’s Brief at 11. The essence of Appellant’s weight
argument is that his estranged wife’s testimony and credibility does not
support his conviction. Appellant states that his estranged wife
“exaggerated the number of phone calls” she received from Appellant, did
not testify that “the phone calls made her afraid,” and “in fact made her own
contact with [Appellant] through a number of letters.” Appellant’s Brief at
11. Appellant argues that “none of the testimony” presented through his
estranged wife shows that he engaged in contact “with the intent to cause
her substantial emotional distress, nor that he actually caused her any
emotional distress.” Id.The Commonwealth counters that Appellant's weight claim is without
merit because “the jury, as finders of fact, found the victim’s testimony to be
credible and believed the victim’s testimony.” Commonwealth’s Brief at 18.
The Commonwealth further maintains that Appellant’s convictions were “not
manifestly unreasonable, the law was not misapplied, and the record was
devoid of partiality, prejudice, bias or ill will.” Id.-8-
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Upon review of the record, we discern no abuse of discretion by the
trial court in concluding that Appellant’s weight claim is meritless and
denying his post-sentence motion for a new trial.5 There are 407 pages in
the trial transcript, the overwhelming majority of which comprise the
Commonwealth’s case. Five witnesses testified at Appellant’s trial, and all of
them — Officer Derek Smith, Catherine Gennaro (Appellant’s estranged
wife), Detective William Shafer, Officer Daniel Teague, and Sergeant Darryl
Smuck, II — were called by the Commonwealth. Appellant chose not to
testify. N.T., 11/6-8/15, at 333. Appellant re-called Detective Shafer as the
sole defense witness; the detective’s extremely brief testimony was that
with regard to the June 3-5, 2012 time period, when Sergeant Smuck told
Detective Shafer about a phone call from Appellant’s estranged wife, he did
not note that call in his report, but did “so on my pictures though.” 6 Id. at
334-335.
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5
Pennsylvania Rule of Criminal Procedure 607(A) requires that a claim that
the verdict was against the weight of the evidence “shall be raised with the
trial judge in a motion for a new trial: (1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.”
6
Detective Shafer testified on direct examination that he took photographs
of the cell phone of Appellant’s estranged wife, and these photographs
“show[ed] calls on it that would have been made to her when she came and
reported that [Appellant] was contacting her from York Hospital.” Id. at
293-294.
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In specifically addressing Appellant’s argument regarding his
estranged wife’s testimony, the trial court noted, “[w]hile the Victim did
indicate that [Appellant] made over one hundred (100) phone calls to her,
she was not, in fact, referring to the time period of June 3, 2012 through
June 5, 2012. The Victim was, instead, referring to the time period in May
when she references receiving over 100 phone calls from [Appellant].” Trial
Court Opinion, 10/2/15, at 2-3 (citations to notes of testimony omitted).
Our review confirms the trial court’s statements. The victim testified that
during “this [June 3-5, 2012] period,” she received “6, 10, somewhere
around there” phone calls from Appellant, and stated she “was not really
sure, there’s just been so many.” N.T., 11/6-8/13, at 124. She explained,
“[a]ll of the voice mails and the calls and every time that I would hear his
voice and things such as that, it would be very upsetting to me because I did
feel guilty.” Id. at 126.
Appellant notes that Appellant’s estranged wife did not immediately
report the phone calls to the police, but the trial court concluded that the
“length of time it took the Victim to contact the police has no bearing on the
credibility of the witness.” Trial Court Opinion, 10/2/15, at 2. Our review
reveals that relative to the June 3-5, 2012 time period, Appellant’s
estranged wife testified that she did contact police when she learned “that
[Appellant] was being released from the hospital.” N.T., 11/6-8/15, at 124.
As to her emotional state, the Commonwealth specifically asked
Appellant’s estranged wife: “How about the time in early June when
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[Appellant] called from the hospital and then after that?” Id. at 196. She
replied: “The time that he called from the hospital scared me because then I
knew he was out. I was afraid he would come to our house or—” Id. at
197-198. Appellant’s estranged wife noted that Appellant was angry that
she had not visited him in the hospital. Id. at 123. Although she repeatedly
asked Appellant to stop, he kept calling her anyway. Id. at 121-126. Given
this testimony, the jury could infer Appellant’s intent to cause his estranged
wife substantial emotional distress by his repeated phone calls.
As stated above, for a weight claim to prevail, “the evidence must be
so tenuous, vague and uncertain that the verdict shocks the conscience of
the court.” Ross, 856 A.2d at 99. After careful consideration, we discern no
abuse of discretion by the trial court in determining that Appellant’s weight
claim is without merit.
Accordingly, Appellant is not entitled to relief on his weight and
sufficiency claims, and we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2016
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