Case 1:18-cv-00867-YK-SES Document 1 Filed 04/23/18 Page 1 of 12

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS S. GERVASI, :
:
Petitioner-Movant, :
:
v. : No.
:
PENNSYLVANIA DEPARTMENT OF :
CORRECTIONS and :
PENNSYLVANIA BOARD OF :
PROBATION AND PAROLE, :
:
Respondents. :

PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

1. (a) Name and location of court that entered the judgment of

conviction you are challenging: Lackawanna Court of Common
Pleas, Scranton, Pennsylvania

(b) Case number: No. 440-CR-2010

2. (a) Date of the judgment of conviction: December 21, 2011

(b) Date of sentencing: March 16, 2012

3. Length of sentence: 5 to 10 years (currently on state parole)

4. Nature of crime (all counts):

Counts 1-7: Arson (Danger of Death or Bodily Injury) - 18

Pa. C.S.A. § 3301(A)(1)

Count 8: Arson – (Intent Destroy Unoccupied Building) – 18

Pa. C.S.A. § 3301(C)(1)

Count 9: Arson – (Intent to Collect Insurance) – 18 Pa.

C.S.A. § 3301(C)(3)

Counts 10-12; 19-20: Reckless Burning or Exploding

(property value greater than $5,000) – 18 Pa. C.S.A. §
3301(D)(2)

Count 13: Insurance Fraud – 18 Pa. C.S.A. § 4117(A)(3)

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Counts 14-18: Criminal Mischief – 18 Pa. C.S.A. §

3304(A)(1)

5. What was your plea? Not Guilty

6. If you went to trial, what kind of trial did you have? Jury
Trial

7. Did you testify at a pretrial hearing, trial, or post-trial

hearing? Yes

8. Did you appeal from the judgment of conviction? Yes

9. If you did appeal, answer the following:

(a) Name of court: Pennsylvania Superior Court
(b) Case numbers: 1533 & 1566 MDA 2012 (Superior Court)
(c) Result and date of result: Judgment of conviction and
sentence affirmed July 8, 2013
(d) Grounds raised:

1. The trial court erred in admitting evidence of

defendant’s financial situation as indicative of a criminal
motive that was contrary to the Pennsylvania Supreme
Court’s holding.
2. The trial court erred or abused its discretion in
admitting evidence of the alleged recreation of the fire
because the conditions of the alleged recreation were
drastically different from those of the actual fire.
3. The judgment should be reversed because there was
insufficient evidence to establish guilt beyond a
reasonable doubt.
4. The judgment should be reversed because of
prejudicial prosecutorial delay.

(e) If you sought further review of the decision on appeal

by a higher state court, please answer the following:

(1) Name of court: Pennsylvania Supreme Court; 587 &

588 MAL 2013
(2) Result: Petition for allowance of appeal denied
January 15, 2014
(3) Grounds raised:

a. The Pennsylvania Supreme Court’s precedent

precludes evidence of a criminal defendant’s financial
condition in order to ensure a fair trial.

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b. The appeal should be granted to resolve a

conflict regarding the standard for admission of
demonstrative evidence purporting to re-create an
underlying event.
c. Whether the Pennsylvania Supreme Court holds
that a criminal defendant preserves a claim that his
conviction was based on insufficient evidence by so stating
in the Rule 1925 Statement of Errors Complained of on
Appeal, and where the Superior Court repeatedly disregards
that holding, should this appeal be allowed in order to
enforce compliance with this Court’s precedent.
d. Where the Pennsylvania Supreme Court
prohibits convictions based on a defendant’s mere presence
at the scene of a crime, and where the Superior Court
affirmed a conviction based on Defendant’s mere presence,
along with many others, in the general area where a fire
started, should this appeal be allowed in order to enforce
compliance with this Court’s precedents.

(f) If you filed a petition for certiorari in the United

States Supreme Court, please answer the following with respect
to each direct appeal: N/A No cert. petition was filed

10. Other than a direct appeal from the judgment of conviction

and sentence, have you previously filed any petitions,
applications, or motions with respect to this judgment in any
court, state or federal? Yes

11. If your answer to 10 was “yes,” give the following

information:

(a)
(1) Name of court: Lackawanna Court of Common Pleas,
Scranton, Pennsylvania

(2) Nature of proceeding: Post Conviction Collateral

Relief (“PCRA”)

(3) Grounds raised: Ineffective Assistance of

Counsel

(4) Did you receive an evidentiary hearing on your

petition? Yes

(5) Result: PCRA relief denied

(6) Date of result: May 2, 2016

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(b) As to any second petition, application or motion give

the same information. N/A

(c) Did you appeal to the highest state court having

jurisdiction the result of action taken on any
petition, application or motion? Yes. Pennsylvania
Superior Court (No. 821 MDA 2016); affirmed February
14, 2017; Pa. Supreme Court; petition for allowance of
appeal denied August 8, 2017 (No. 169 MAL 2017)

12. For this motion, state concisely every ground on which you
claim that you are being held unlawfully. Summarize briefly the
facts supporting each ground. If necessary, you may attach
pages stating additional grounds and facts supporting same.1

A: The Prosecutor’s Improper Closing Argument Was So

Prejudicial As To Violate Mr. Gervasi’s Due Process
Right To A Fair Trial._____________________________

In his closing argument, the Assistant District

Attorney’s final remarks and the last statement the jury

heard before deliberating a few days before Christmas was

the following:

But what I want you to take with you is the

picture of the individuals sitting in that
courtroom in the third row that were displaced,
almost killed as a result of this fire when you
go back and think about this. Because it’s their
faces that you should be thinking about because
they were the ones who were affected as a result
of this fire. And hold that individual
responsible for what he did. Thank you.

Trial Tr. Dec. 21, 2011, at 116.

1
The undersigned proffers that he will offer testimony at an
evidentiary hearing to support all the factual allegations in
this motion that are not already part of the record. A brief in
support of this petition with an appendix will be filed in due
course consistent with Middle District Local Rule 7.5.
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These calculated parting words were a deliberate

request for sympathy for the victims, a blatant appeal to

the juror’s emotions, designed to leave a lasting bias and

hostility towards Mr. Gervasi. The characterization that

the victims were “almost killed” was factually dishonest

and designed to prejudice Mr. Gervasi. These and other

highly inflammatory comments that the prosecution sprinkled

throughout its closing argument, including Mr. Gervasi’s

poor financial condition as a motive to commit the crimes,

and the subtle and inappropriate credibility vouching for

its witnesses, was so prejudicial that Mr. Gervasi was

denied his due process right to a fair trial.

B: Denial Of Effective Assistance Of Counsel.

Ground 1: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING

TO OBJECT TO AND/OR REQUEST A MISTRIAL FOLLOWING THE
OVERWHELMINGLY PREJUDICIAL CLOSING ARGUMENT BY THE
ASSISTANT DISTRICT ATTORNEY, WHICH INCLUDED AMONG OTHER
THINGS, AN INVOCATION OF SYMPATHY FOR THE VICTIMS OF THE
FIRE AND PREJUDICIAL REMARKS REGARDING MR. GERVASI’S POOR
FINANCIAL STATUS.

As outlined above, the prosecution engaged in a highly

charged and prejudicial closing argument. All of these

comments went unfettered. There was no objection, no

motion for a mistrial or any cautionary instruction

requested by trial counsel. Consequently, this failure

constituted ineffective assistance of counsel and a new

trial is warranted.

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Ground 2: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING

TO REQUEST A FRYE HEARING, PURSUANT TO FRYE V. UNITED
STATES, 293 F. 1013 (APP. D.C. 1923), ON THE VALIDITY
AND/OR RELIABILITY OF THE COMMONWEALTH’S CAUSE AND ORIGIN
EXPERT.

During this arson trial, the state trooper arson

expert testified that he used a “process of elimination

method” to determine that the fire was caused by arson.

Trial counsel conceded that this method was deficient and

not appropriate, but nevertheless he never made a pre-trial

challenge to it. No strategic reasons were ever provided

by trial counsel for failure to seek a Frye hearing. The

failure to request a Frye hearing under the circumstances

here were highly prejudicial and constituted ineffective

assistance.

Ground 3: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING

TO OBJECT TO THE INTRODUCTION OF A FLOOD OF EVIDENCE
REGARDING MR. GERVASI’S FINANCIAL DIFFICULTIES AND NO
REQUEST FOR AN APPROPRIATE CAUTIONARY INSTRUCTION WAS EVER
MADE WHERE SUCH EVIDENCE WAS IRRELEVANT, HIGHLY PREJUDICIAL
AND SHOULD HAVE BEEN EXCLUDED.

The Commonwealth called no less than five witnesses to

testify exclusively on Mr. Gervasi’s financial history.

Some of the evidence elicited was remote in time, highly

irrelevant and had no probative value. Trial counsel

acknowledged that the Commonwealth’s focus was on Mr.

Gervasi’s financial history and that such testimony was

prejudicial. Nevertheless, no objection to the

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introduction of this evidence or a request for a cautionary

instruction was ever made by counsel. The failure to

object to this evidence and/or request a cautionary

instruction advising the jury as to the proper scope of

this evidence or how to use this evidence was prejudicial

and constitutes ineffective assistance.

Ground 4: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING

TO REQUEST AN APPROPRIATE CAUTIONARY INSTRUCTION REGARDING
THE PRE-TRIAL EXPERIMENT BY TROOPER ANDRESS REGARDING HIS
ALLEGED RECREATION OF THE FIRE.

At trial, over counsel’s objection, the trial court

admitted the results of an experiment conducted by Trooper

Andress regarding the alleged recreation of the fire. A

brief cautionary instruction was provided by the trial

court stating “[I] must caution you that this testimony is

an attempt to re-create or prove his theory of how the fire

occurred, okay?” Trial Tr. Dec. 19, 2011, at 80. No

objection to that instruction or any further instruction

was requested. This instruction was entirely insufficient

and at no time did counsel request nor did the court

provide any further instruction to the jury regarding how

to use this evidence, what weight, if any, was to be given

to this experiment or that the jury could reject the

experiment if the conditions were not similar to those

existing when the fire occurred. Trial counsel rendered

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ineffective assistance as a result of his failure to

request such a critical instruction.

13. Is there any ground in this motion that you have not
previously presented in any other court, state or federal, state
briefly what grounds were not so presented and give your reasons
for not presenting them: N/A

14. Do you have any motion, petition, or appeal now pending in

any court, state or federal, as to the judgment now under
attack? No

15. Give the name and address, if known, of each attorney who
represented you in the following stages of the judgment you are
challenging:

(a) At preliminary hearing:

Paul Walker, Esq.
204 Wyoming Ave.
Scranton, PA 18503

(b) At trial: Same as above

(c) At sentencing: Same as above

(d) On appeal:
Gilbert Abramson, Esq.
One Presidential Blvd., Suite 315
Bala Cynwyd, PA 19004

(e) On post-conviction (“PCRA”):

Kurt Lynott, Esq.
103 E. Drinker Street
Dunmore, PA 18512

Edward J. Rymsza
Miele & Rymsza, P.C.
125 East Third Street
Williamsport, PA 17701

(f) On any appeal from any ruling against you in a post-

conviction proceeding: Edward J. Rymsza

16. Were you sentenced on more than one count of an indictment?

Yes

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17. Do you have any future sentence to serve after you complete
the sentence for the judgment that you are challenging? No

18. N/A

WHEREFORE, Mr. Gervasi requests the following relief:

a. that the Court conduct an evidentiary hearing on this

Motion pursuant to Rule 8 of the Rules Governing 28 U.S.C. §

2254 cases;

b. that the Court vacate the conviction and sentence and

grant a new trial;

c. that the Court require the Respondents to file an

answer to this Motion in form prescribed by Rule 5 of the Rules

governing § 2254 cases and specifically admitting or denying the

allegations set forth above;

d. that Mr. Gervasi be permitted to file a reply in

support of this Motion in which he may address the Respondents’

response; and,

e. that the Court grant such other relief that may be

just and proper.

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Dated: April 20, 2018

MIELE & RYMSZA, P.C.

By: s/Edward J. Rymsza

Edward J. Rymsza
Pa. I.D. No. 82911
Attorney for Petitioner
125 East Third Street
Williamsport, PA 17701
Phone: (570) 322-2113
Fax: (570) 322-8813
Email:rymsza@comcast.net

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CERTIFICATE OF SERVICE

I, Edward J. Rymsza, Esq., hereby certify that on this 20th

day of April 2018, I served the foregoing Petition for Writ of

Habeas Corpus Pursuant to 28 U.S.C. § 2254 upon the following by

first class U.S. mail:

Andy Jarbola, III

Office of Lackawanna District Attorney
200 N. Washington Street
Scranton, PA 18503

Theron Perez
Chief Counsel
Pennsylvania Department of Corrections
1920 Technology Parkway
Mechanicsburg, PA 17050

Barbara Christie
Chief Counsel
Pennsylvania Board of Probation and Parole
1101 S. Front Street, Suite 5300
Harrisburg, PA 17104-2517

MIELE & RYMSZA, P.C.

By: s/Edward J. Rymsza

Edward J. Rymsza
Pa. I.D. No. 82911
Attorney for Petitioner
125 East Third Street
Williamsport, PA 17701
Phone: (570) 322-2113
Fax: (570) 322-8813
Email:rymsza@comcast.net

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DECLARATION

I, Edward J. Rymsza, am an attorney duly admitted practice

law in the Commonwealth of Pennsylvania and admitted to practice

before this Court. I declare that the facts set forth in the

foregoing petition are true and correct to the best of my

knowledge, information and belief. I understand that false

statements are subject to the penalties of perjury.

s/Edward J. Rymsza
Edward J. Rymsza

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