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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

____________________________________________


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.




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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.




____________________________________________


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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