Com. v. Gervasi, T., Com. v. Gervasi, T. No. 821 MDA 2016

Background

Thomas S. Gervasi was convicted after an eight-day jury trial (Dec. 2011) of multiple arson-related offenses, insurance fraud, and criminal mischief for a June 17, 2008 fire at 1021 Mark Avenue, Scranton; sentenced to 5–10 years plus one year special probation.
Investigation by state trooper Russell Andress and Scranton Fire Detective Martin Monahan concluded the garage fire was arson; Andress employed a process-of-elimination methodology and conducted a demonstration.
Evidence at trial included witnesses injured/displaced by the fire, physical evidence recovered from the damaged garage, and Gervasi’s dire financial circumstances (bankruptcy discharge days before the fire, foreclosures, liens).
Gervasi filed a timely PCRA petition alleging trial counsel was ineffective for (inter alia) not objecting to prosecutorial closing comments, not seeking a Frye hearing on Andress’s methodology, not moving to suppress post-fire searches, and not objecting to financial-evidence introduction.
The PCRA court held an evidentiary hearing, denied relief, and the Superior Court affirmed, adopting the trial court’s opinion.

Issues

Issue	Plaintiff's Argument (Gervasi)	Defendant's Argument (Commonwealth / Trial Counsel)	Held
1. Failure to object to prosecutor’s closing comment about victims being “almost killed”	Comment was prejudicial, inflammatory, appealed to juror sympathy, and created unfair bias requiring objection or mistrial.	Comment was a permissible rhetorical summation based on evidence (injuries, displacement); counsel reasonably declined to object.	No misconduct; counsel not ineffective for failing to object.
2. Failure to request Frye hearing re: fire-cause methodology (process of elimination / negative corpus)	Andress’s method is the “negative corpus” approach which NFPA guidance criticized; a Frye hearing should have tested admissibility of novel methodology.	Andress used a non-novel, accepted process-of-elimination grounded in scene evidence and testing; any challenge goes to weight, not admissibility.	Frye not required; claim lacked merit and no prejudice shown.
3. Failure to move to suppress physical evidence from post-fire inspections and excavations	Continued visits and excavations weeks after the fire required a warrant; evidence obtained should have been suppressed.	Garage was a devastated structure with no reasonable privacy expectation (Clifford/Michigan v. Tyler); Gervasi impliedly consented and investigators acted properly.	No reasonable expectation of privacy in the burned garage; suppression motion would not have succeeded.
4. Failure to object to admission of Gervasi’s financial condition; related claims about pretrial experiment and prosecutorial delay	Financial evidence was unfairly prejudicial; pretrial experiment required cautionary instruction; prosecutorial delay warranted dismissal.	Financial evidence was relevant to motive and not unduly inflammatory; pretrial-experiment and delay issues were litigated on direct appeal.	Financial evidence admissible as motive; pretrial-experiment and delay claims are previously litigated and barred; counsel not ineffective.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard)
Michigan v. Tyler, 436 U.S. 499 (warrantless entry of fire-damaged premises; exigent-circumstances limits)
Michigan v. Clifford, 464 U.S. 287 (Fourth Amendment expectations of privacy in fire-damaged property)
Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa.) (Frye/general-acceptance framework in Pennsylvania)
Trach v. Fellin, 817 A.2d 1102 (Pa. Super.) (limits on when Frye is triggered)
Commonwealth v. Johnson, 966 A.2d 523 (Pa.) (three-prong PCRA ineffective-assistance test and standards cited)
Commonwealth v. Bozic, 997 A.2d 1211 (Pa. Super.) (prosecutorial comment analysis and standard for reversal)
Commonwealth v. Ward, 605 A.2d 796 (Pa.) (motive evidence relevance)