J-S39007-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

THOMAS GEHAN,

                        Appellant                   No. 401 EDA 2014


          Appeal from the Judgment of Sentence August 26, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): MC-51-CR-0011617-2012
                         CP-51-CR-0005013-2012



BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 07, 2015

     Thomas Gehan appeals from the judgment of sentence of three to six

months imprisonment followed by two years probation imposed after

Appellant was convicted of two counts of terroristic threats and one count of

simple assault.   We affirm the convictions, but vacate the sentence and

remand for an evidentiary hearing.

     Based upon events that occurred on March 7, 2012, Appellant was

charged at criminal action number 11617 of 2012 with terroristic threats,

contempt for violating an order, and harassment.        Due to an incident

occurring on March 14, 2012, he was charged at criminal action number

5013 of 2012 with aggravated assault, contempt for violating an order,
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possession    of    instrument   of   crime,   terroristic   threats,    reckless

endangerment, and two counts of simple assault.              The matters were

consolidated and proceeded to a nonjury trial, where the victim Yolanda

Zandona testified as follows.

      In March 2012, she and Appellant had mutual protection from abuse

(“PFA”) orders against each other. They had dated from November 2010 to

October 2011.      On March 7, 2012, Ms. Zandona, who was approximately

seven months pregnant with Appellant’s son, was residing with her former

boyfriend, Steven Carroll, and Steven’s mother Ana on East Hazard Street in

Philadelphia. That day, Ana received a telephone call and started to scream.

Ms. Zandona ran to Ana, who appeared frightened and upset and said that

Appellant had threatened her life.

      The telephone rang again, and Ms. Zandona answered it.            Appellant

was on the line, and he “started threatening. And said that he has a new

baby on the way. And that he was going to hurt me and Ana Carroll.” N.T.

Trial (Waiver), 3/25/13, at 17. Ms. Zandona continued that Appellant “said

he was going to hurt me in any type of way. Shoot me.” Id. at 18. Ms.

Zandona was aware that Appellant had a “drawer full of knives,” including

switchblades, since she viewed those items when she lived with Appellant.

The victim immediately telephoned police and reported the crime.           There

was a stipulation that a police witness would have verified that on March 7,

2012, Ana Carroll and Ms. Zandona filed a police report against Appellant.

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      At approximately 6:30 p.m. on March 14, 2012, Ms. Zandona was

watching television at the East Hazard Street residence when she heard Ana

screaming just outside the front door. Ms. Zandona went to the door and

saw Appellant “out there yelling at [Ana], calling her a bitch.”    Id. at 25.

Appellant had a knife in his hand. Id. at 27. Appellant started swinging the

knife back and forth toward Ana while he was standing about two feet from

her, and he was saying that “he was going to f      ing kill her[.]” Id. at 28-

29.

      Ms. Zandona confronted Appellant and asked what he was doing since

he had a PFA preventing him from being in proximity to her.          Appellant

swung the blade at Ms. Zandona.      Ms. Zandona felt that her unborn baby

was in danger because Appellant had “said that there is [a] new one on the

way by his ex-girlfriend Gina. And he does not want mine anymore.” Id. at

30-31. Ana’s two sons chased Appellant away with a bat.

      Appellant did not testify in his defense, but argued that Ms. Zandona

was not credible.     The trial court determined otherwise and convicted

Appellant of two counts of terroristic threats and one count of simple assault.

It acquitted Appellant of the remaining charges. The court ordered a pre-

sentence report, and, on August 26, 2013, the matter proceeded to

sentencing.   Appellant orally raised a weight-of-the evidence claim at that

time. He pointed out that the victim had a conviction involving crimen falsi,

conspiracy to commit robbery, and Appellant maintained that there were

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inconsistencies in her testimony. Appellant continued that Ms. Zandona had

a “clear motive to fabricate, based on the relationship she had had with my

client, his new relationship[.]” N.T., 8/26/13, at 9. Appellant also pointed

to the lack of corroborative evidence, such as telephone records and other

witnesses to the two events.

       The court rejected his motion and sentenced Appellant to three to six

months imprisonment on one count of terroristic threats, a consecutive

period of probation of two years for simple assault, and no further penalty

for the other count of terroristic threats.      Based upon these convictions,

Appellant’s parole and probation in a separate case were revoked, and he

began serving a state sentence in that matter.

       On May 19, 2014, after this appeal was filed from the judgment of

sentence, Appellant filed with this Court an application to remand this matter

for an evidentiary hearing based upon the existence of after-discovered

evidence.     Appellant averred that counsel had subpoenaed transcripts of

telephone calls that Appellant made from prison because Appellant, between

February 7, 2014, to March 7, 2014, telephoned Ms. Zandona approximately

twelve times and Ms. Zandona admitted that she fabricated her trial

testimony.1


____________________________________________


1
    Appellant submitted a compact disc with the telephone conversations.



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       Specifically, Appellant averred the following. During a 2:20 p.m. call

on February 7, 2014, Appellant told Ms. Zandona that he was serving a

lengthy prison term since the convictions herein resulted in revocation of

both his parole and probation in the other criminal action.       Ms. Zandona

responded, “[M]y bad. I didn't know, like I really didn't. I was angry. I was

angry at you for abandoning me.” Petition To Remand Record To Trial Court

For The Filing Of A Post-Sentence Motion For A New Trial On The Ground Of

After-Discovered Evidence And To Vacate Briefing Schedule at ¶ 11.

       During a February 20, 2014 call, Appellant accused Ms. Zandona of

fabricating her testimony based upon the demands of an unidentified man

that Appellant referred to as “dude.” Id. Ms. Zandona then responded, “I

was pregnant, first of all and you f    ing left me. So I was hurt, hurt people

hurt people. Come on now you were with that big-ass f          ing big-forehead

f   ing Gina."   Id.   During that same call, Appellant again stated that Ms.

Zandona had lied “about me on the stand, because dude told you to

Yolanda, you don't think that is f     ed up, like come on." Id. Ms. Zandona

answered, “[I]t is f   ed up, it is.” Id. Ms. Zandona then said, “[O].k., I will

tell the DA and tell them that the dude had a f     ing gun up to my head and

threatened to kill me and f     ing made me f     ing tell on you and lie about

you[.]” Id.

       Based upon these telephone calls, Appellant petitioned this Court for a

remand for the conduct of an evidentiary hearing to determine if Appellant

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was entitled to a new trial. This Court denied that petition without prejudice

to Appellant’s right to re-assert his position before this panel. Appellant filed

his brief, raising a weight claim and again seeking remand for an evidentiary

hearing based upon after-discovered evidence:

             1. Did not the trial court err by denying appellant's motion
      for a new trial, as the verdict was against the weight of the
      evidence where the Commonwealth presented the testimony of
      only one incredible and uncorroborated witness at appellant's
      trial and a new trial is necessary in the interests of justice?

            2. Should not this matter be remanded to the trial court
      for a hearing on after-discovered evidence because while this
      case was pending on appeal telephone conversations between
      appellant   and   the   complainant     in    this  matter,   the
      Commonwealth's only trial witness, took place in which the
      complainant admitted to fabricating her trial testimony and these
      telephone conversations were lawfully recorded?

Appellant’s brief at 3.

      Since the trial judge rejected Appellant’s weight claim, the merits of

that contention is subject to the following standard of review:

             A verdict is not contrary to the weight of the evidence
      because of a conflict in testimony or because the reviewing
      court on the same facts might have arrived at a different
      conclusion than the fact-finder. Rather, a new trial is warranted
      only when the jury's verdict is so contrary to the evidence that
      it shocks one's sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail. Where, as here, the judge who presided at trial 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. Rather, appellate review is
      limited to whether the trial court palpably abused its discretion
      in ruling on the weight claim.




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Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).

Indeed, “One of the least assailable reasons for granting or denying a new

trial is the lower court's determination that the verdict was or was not

against the weight of the evidence and that new process was or was not

dictated by the interests of justice.” Id.

      Appellant first posits that Ms. Zandona’s testimony was incredible on

its face. Appellant’s brief at 17-21. This position fails since it is beyond cavil

in this Commonwealth that it is solely within the province of the factfinder to

determine a witness’s credibility. Commonwealth v. Page, 59 A.3d 1118,

1130 (Pa.Super. 2013) (“A determination of credibility lies solely within the

province of the factfinder.”) Commonwealth v. Blackham, 909 A.2d 315,

320 (Pa.Super. 2006) (“The weight of the evidence is exclusively for the

finder of fact, which is free to believe all, part, or none of the evidence, and

to assess the credibility of the witnesses. . . . It is not for this Court to

overturn the credibility determinations of the fact-finder.”) (emphasis

added).    Since we are not permitted to rule that Ms. Zandona’s testimony

was unworthy of belief, we reject this assertion.

      Appellant next suggests that Ms. Zandona should not have been

believed   due   to   her   motive   to    fabricate   the   charges   and   due   to

inconsistences between her trial testimony and her statements to police as

well as her preliminary hearing testimony. Appellant’s brief at 21-22. This

averment likewise must fail in that inconsistencies in a witness’s testimony

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and   a    witness’s   bias    both   relate   to   that    person’s   credibility.

Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (“Questions

concerning inconsistent testimony and improper motive go to the credibility

of the witnesses. This Court cannot substitute its judgment for that of

the jury on issues of credibility.”) (emphasis added; citations omitted).

The trial court heard about the inconsistencies and Appellant argued that the

witness was biased. The trial court, sitting as factfinder, had to determine

whether she was credible despite these facts.           We cannot substitute our

judgment in this respect for that of the trial court.

      Appellant also suggests that his convictions cannot stand due to the

lack of corroborating evidence.       Appellant’s brief at 22-23.      It is well-

established that the uncorroborated testimony of a single person is sufficient

to support a conviction. E.g. Commonwealth v. Trippett, 932 A.2d 188

(Pa.Super. 2007) (uncorroborated testimony of a victim, if believed by

factfinder, can sustain a conviction); Commonwealth v. Lamb, 455 A.2d

678, 686 (Pa.Super. 1983) (“It is clear that the uncorroborated testimony of

a co-conspirator, if believed, is sufficient to support a conviction in a criminal

conspiracy   prosecution.”);   Commonwealth v. Budd,             140   A.2d 346

(Pa.Super 1958) (uncorroborated testimony of drug-addict witness was

sufficient to sustain conviction).

      Thus, the fact that there was no corroborating evidence does not

render Appellant’s convictions infirm or allow this Court to overturn the trial

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court’s credibility determination.     We have reviewed Ms. Zandona’s

testimony, which we must credit under applicable precedent. If credited, we

perceive of no abuse of discretion in the trial court’s conclusion that the

verdict did not shock its sense of justice. Hence, we reject Appellant’s first

allegation.

      Appellant also seeks a remand for a new trial based upon the

telephone conversations that he had with Ms. Zandona after this appeal was

filed. We note that, “A post-sentence motion for a new trial on the ground

of after-discovered evidence must be filed in writing promptly after such

discovery.”   Pa.R.Crim.P. 720(C).   Additionally, “after-discovered evidence

discovered during the direct appeal process must be raised promptly during

the direct appeal process, and should include a request for a remand to the

trial judge[.]”   Pa.R.Crim.P. 720, Comment.   Hence, Appellant’s request is

properly before this court.       Commonwealth v. Perrin, 108 A.3d 50

(Pa.Super. 2015).

      As our Supreme Court has observed: “The four-prong test for

awarding a new trial because of after-discovered evidence is well settled.

The evidence: (1) could not have been obtained prior to trial by exercising

reasonable diligence; (2) is not merely corroborative or cumulative; (3) will

not be used solely to impeach a witness's credibility; and (4) would likely

result in a different verdict.”   Commonwealth v. Castro, 93 A.3d 818,

821 (Pa. 2014).

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      Appellant proffers that, at an evidentiary hearing, he will ask the trial

court to both review “the telephone calls and entertain testimony from Ms.

Zandona herself.” Appellant’s brief at 29. The Commonwealth has indicated

that it “does not oppose a remand to allow defendant to present the

testimony of Ms. Zandona at an evidentiary hearing.” Commonwealth’s brief

at 13. The Commonwealth concurs that such a hearing is appropriate under

this Court’s decision in Perrin.

      Perrin was a remand from our Supreme Court for reconsideration in

light of Castro, supra, of this Court’s grant of an evidentiary hearing based

upon after-discovered evidence.      In Castro, the Court opined that the

contents of a newspaper article were not evidence upon which an evidentiary

hearing could be awarded in this context. In Perrin, we again remanded for

a hearing.    Therein, the defendant’s convictions were premised primarily

upon the testimony of a single witness, who acknowledged at trial that his

testimony was obtained by the Commonwealth in exchange for leniency in a

pending federal matter.     After the defendant’s trial and sentencing, that

witness told a cellmate that he had fabricated his testimony against the

defendant and that the defendant was not involved in the crime in question.

The cellmate informed the Federal Bureau of Investigation, which prepared

an affidavit outlining the cellmate’s report and forwarded the affidavit to the

Commonwealth.      The district attorney, in turn, gave the affidavit to the

defendant.

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      We observed that the first prong of the after-discovered evidence test

was satisfied since the cellmate did not tell the FBI about the witness’s

admissions until after the defendant was sentenced.       We further observed

that the second element of the test was met as there was no proof offered at

trial indicating that defendant had not participated in the crime.

      We also ruled that evidence that a witness had fabricated his

testimony, in its entirety, could not, as a matter of law, be characterized as

merely impeachment evidence and that an evidentiary hearing was required

so that that determination could be made by the trial court. We opined that

the affidavit did much more than suggest that the witness could have been

cross-examined. Instead, the affidavit indicated that the witness committed

perjury and that the defendant was innocent of the crime. We noted that

the document in question was an affidavit, which does constitute evidence,

in contrast to the contents of a newspaper article, which was rejected as

evidence in Castro.    We concluded that evidence that the key witness at

trial lied about the defendant’s participation in it might have changed the

outcome at trial.     Hence, we ruled that an evidentiary hearing was

warranted.

      Herein, Appellant’s proof arose after sentencing and is after-discovered

evidence.    It was not corroborative or cumulative to other evidence

produced at trial. It did not merely involve impeachment since Ms. Zandona

stated in the telephone calls that she fabricated her testimony against

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Appellant in revenge for his abandonment of her and due to the coercion of

an unnamed male. If Ms. Zandona did lie, such an admission would likely

have changed the outcome at trial.            Since Appellant has satisfied the

requirements for an evidentiary hearing on his claim, as outlined by Perrin,

we will grant relief.

      The trial court must conduct an evidentiary hearing and receive

testimony from Ms. Zandona and listen to the telephone conversations in

order to determine if Appellant is entitled to a new trial. If the trial court

concludes that a new trial is not warranted, the sentence can be reinstated.

      Petition for remand granted.     Judgment of sentence vacated.      Case

remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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