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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

*

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 postsentence 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 factfinder, 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