Opinion
J-S91021-16 No. 821 MDA 2016
02-14-2017
COMMONWEALTH OF PENNSYLVANIA v. THOMAS S. GERVASI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Former Justice specially assigned to the Superior Court.
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. Appellant's was subsequently sentenced to an aggregate term of five to ten years of incarceration followed by one year of special probation.
18 Pa.C.S. §§ 3301(a)(1)(i), 3301(c)(3), 3301(d)(2), 4117(a)(3), 3304(a)(1), respectively.
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 Super. 2013) (unpublished memorandum), appeal denied, 84 A.3d 1062 (Pa. 2013).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
recreation of the fire conducted by the Commonwealth's expert?Appellant's Brief at 4.
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?
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 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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/14/2017
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