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[U] Commonwealth v. Gervasi

Superior Court of Pennsylvania

July 8, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
THOMAS S. GERVASI, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
THOMAS S. GERVASI, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 16, 2012 In the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0000440-2010.

BEFORE: FORD ELLIOTT, P.J. E., PANELLA, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Thomas S. Gervasi, appeals from the judgment of sentence[1] imposed following his conviction of six counts of arson—endangering persons, four counts of criminal mischief, two counts of arson—reckless burning or exploding, and one count each of arson—endangering property and insurance fraud.[2] We affirm.

The trial court set forth the facts of this case in its December 27, 2012 opinion as follows:

On June 17, 2008, a fire broke out at 1021 Mark Avenue in Scranton. Shortly after the fire was reported, the Scranton Fire Department was dispatched to the scene. When the Fire Department arrived at the scene, they not only found both the residence and garage at 1021 Mark Avenue on fire, but also the neighboring residences of 1023-1025 Mark Avenue. . . . [I]njured as a result of the fire were Samantha McDonald and her infant son, [N.L.], residents of 1021 Mark Avenue, who were treated at CMC Hospital in Scranton for their injuries. In addition, others present on the scene during the fire were Tracy Smith, also a resident of 1021 Mark Avenue, Otto Vasquez, resident and owner of 1023 Mark Avenue, and Jolene and Duey Belles, residents of 1025 Mark Avenue, none of whom were injured. In addition to the above mentioned medical injuries, a number of the residents of 1021, 1023, and 1025 Mark Avenue also suffered the loss of their personal property, some losing nearly all of their possessions.
During the course of investigating the fire, Pennsylvania State Trooper Russell Andress and Scranton Fire Detective Martin Monahan discovered that the fire started in the garage attached to 1021 Mark Avenue. Also during the course of the investigation, both officers had the opportunity to, on multiple occasions, speak with [Appellant], who was the owner and landlord of 1021 Mark Avenue during the time that the fire took place. In speaking to Trooper Andress and Det. Monahan, [Appellant] maintained that, although he was present at 1021 Mark Avenue when the fire was started, doing some yard work, he did not know how the fire in the garage began, and that he thought that it was either the catalytic converter in his Cadillac Escalade, which was parked in the garage at the time, or an old chain saw, which was also in the garage at the time, that he had trouble starting that day.
As the investigation . . . continued, Trooper Andress and Det. Monahan determined that neither the catalytic converter in the car, nor the defective chain saw, was the cause of the fire, based on all the evidence gathered, including information obtained from others who were present at the scene of the fire that day.
Moreover, during the course of the investigation, Trooper Andress became aware of the circumstances surrounding [Appellant's] financial situation at the time of the fire. For instance, Trooper Andress discovered that [Appellant] had filed for bankruptcy in 2004 and was discharged unsuccessfully on June 12, 2008, just five (5) days before the fire. Also, [Appellant] owned numerous properties that were in foreclosure at the time of [the] fire, including 1021 Mark Avenue, in addition to multiple liens and late credit card and mortgage payments.
At the conclusion of the investigation, based on all of the evidence that had been gathered, including extensive examinations of the scene of the fire, countless interviews with numerous witnesses, multiple conversations with [Appellant], and the discovery of [Appellant's] dire financial circumstances, Trooper Andress declared the fire an arson, and [Appellant] was arrested on January 21, 2010 and charged with setting the fire.

(Trial Court Opinion, 12/27/12, at 2-4 (record citations omitted)).

On December 21, 2011, a jury convicted Appellant of the fourteen above charges. On March 16, 2012, the court sentenced Appellant to an aggregate term of no less than five nor more than ten years' incarceration in a state correctional institution, followed by one year of special probation. The trial court denied Appellant's post-sentence motions and, on August 23, 2012, Appellant timely appealed.[3]

Appellant raises four questions for this Court's review:

1. Where the Pennsylvania Supreme Court prohibits admission of evidence of a defendant's financial condition to prove motive to commit a crime for monetary gain, and where the trial of a case is dominated by a parade of witnesses, exhibits, and prosecutorial remarks emphasizing [Appellant's] allegedly precarious financial condition, does the admission of this inadmissible and highly prejudicial evidence require reversal of the judgment below?
2. Where Pennsylvania law recognizes that juries are likely to attach exaggerated significance to a demonstration purporting to re-create the manner in which the crime was committed, and therefore prohibits admission of such re-creations unless the conditions of the re-creation are substantially similar to those of the underlying incident, and where the conditions in the recreation are drastically different from those in the underlying incident, is it reversible error to admit such evidence?
3. Where the admissible evidence against [Appellant] was that he was in the general vicinity of a fire, which started in broad daylight, and where the remaining evidence against [Appellant] was an inadmissible attempted re-creation of how the fire started, and inadmissible evidence of [Appellant's] financial condition, should the judgment below be reversed for insufficient evidence?
4. Where the Commonwealth focused on [Appellant] as the suspect as early as June 18, 2008, just one day after the fire, and did not arrest him until more than IV2 years later, on January 22, 2010, and where in the meantime the Commonwealth had free rein to inspect and alter the scene of the incident and the vehicle, while denying [Appellant] access to the scene and the vehicle, and where the trial court denied [Appellant's] request for a jury view of the scene, in part on the ground that the conditions at the ...

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