Com. v. Safarowicz, J. ( 2015 )

J-S79020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN SAFAROWICZ
Appellant No. 74 EDA 2014
Appeal from the PCRA Order December 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008648-2009
BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 28, 2015
Appellant, John Safarowicz, appeals pro se from the order entered on
December 6, 2013, dismissing his first petition filed under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We have previously summarized the underlying facts of this case:
This case involves an investigation by the Philadelphia Police
Department’s Internal Affairs Division; at the conclusion of
the investigation, [Appellant], a Philadelphia Police Officer,
was arrested. Following a jury trial, [Appellant] was
convicted of official oppression, criminal mischief, and two
counts of terroristic threats.[1] . . . The facts of this case, as
[adduced at trial] are as follows:
On September 20, 2008, Ryan and Shane Brody beat up
[Appellant’s] brother-in-law, John Benham. The police
arrested Ryan and Shane Brody that night. The following
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1
18 Pa.C.S.A. §§ 5301(1), 3304(a)(4), and 2706(a)(1), respectively.
*Retired Senior Judge assigned to the Superior Court.
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evening at approximately 8:30 p.m., [Appellant] knocked
on the door of 4110 Merrick Street and said “Philadelphia
Police! Open up!” [Appellant] was off duty at the time and
had no official business at the house. . . .
The complainants, Thomas Maisch and Sarah Livingston[,]
were inside 4110 Merrick Street when [Appellant] knocked
on the door. Before allowing [Appellant] to enter the
house, the complainants requested to see [Appellant’s]
badge. [Appellant] held up his police badge to the outer
glass door. Maisch and Livingston looked at the badge.
Although they did not want to open the door, Maisch and
Livingston believed the badge was a police officer badge so
they opened the door. After Maisch and Livingston opened
the door, [Appellant] entered the house and asked where
[Ryan and Shane Brody] were. After Maisch told
[Appellant] that both the Brodys were in jail, [Appellant] hit
Maisch in the face. In response, the complainants pushed
[Appellant] out of the house and locked the door.
[Appellant] subsequently stood on the porch and smashed a
toolbox against a glass window. The toolbox shattered the
window. [Appellant] also damaged the [complainants’]
patio chairs and yelled “I’m going to kill youse [sic] . . . no
one messes with my brother-in-law. You’re messing with
the wrong person.” Fearful, [Livingston] ran upstairs and
called 911.
Appellant was found guilty of two counts of terroristic
threats, one count of official oppression, and one count of
criminal mischief. On July 16, 2010, [Appellant] was
sentenced to concurrent terms of two years’ probation for
the terroristic threats convictions. No further penalties were
imposed for the remaining charges.
Commonwealth v. Safarowicz, 40 A.3d 191 (Pa. Super. 2011)
(unpublished memorandum) (internal footnotes and citations omitted) at 1-
4, appeal denied, 42 A.3d 1060 (Pa. 2012).
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On December 14, 2011, this Court affirmed Appellant’s judgment of
sentence and, on May 1, 2012, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal. Id.
On June 14, 2012 – which was approximately one month before
Appellant’s probationary term expired – Appellant filed the current PCRA
petition. See Appellant’s Reply to Commonwealth’s Motion to Dismiss,
10/1/12, at 5 (“[Appellant] was sentenced by the court on July 16, 2010.
His sentence called for two years [of] probation. Accordingly, [Appellant’s]
sentence would conclude as of July 16, 2012, assuming no violations of
probation (of which [Appellant] had none).”). Within this petition, Appellant
claimed that he was entitled to post-conviction collateral relief because the
Commonwealth “violated Brady v. Maryland, 373 U.S. 83 (1963)[,] when it
failed to disclose the existence of an agreement between the Philadelphia
[County] District Attorney’s Office and John L. Benham, III, JoAnne Benham,
and Ryan Brody, Shane Brody[,] and Jocelyn Hayes[2] to [Appellant] and his
attorney.” Appellant’s PCRA Petition, 6/14/12, at 9. Specifically, Appellant
claimed, the Philadelphia County District Attorney’s Office had come to an
agreement with the above-named individuals, whereby the Commonwealth
agreed that it would not prosecute Appellant for assaulting Thomas Maisch
and Sarah Livingston if John Benham agreed “that the cases against Ryan
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2
Jocelyn Hayes was arrested along with Shane and Ryan Brody, for
assaulting John Benham.
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Brody and Jocelyn Hayes [would] be dismissed and Shane Brody would
plead to a minor assault charge and receive a minimal amount of probation,”
with respect to the assault upon John Benham. Id. at 9-14. As to why
Appellant did not attempt to raise the above claim on direct appeal,
Appellant declared that, “[w]hile [Appellant] was aware that something
transpired in [the trial court] on February 5, 2009, it was not until after the
first trial was already over and the matter was on direct appeal that this
information truly came to light. In other words[,] the information was not
available at the time of trial, approximately two [] years ago.” Id. at 9.
However, within Appellant’s PCRA petition, Appellant neither notified
the PCRA court that his probationary term was soon to expire nor requested
that the PCRA court conduct an expedited review of his PCRA petition.
On July 16, 2012, Appellant’s probationary term expired and Appellant
was, thus, no longer “serving a sentence of imprisonment, probation[,] or
parole for the crime.” 42 Pa.C.S.A. § 9543(a)(1)(i); Appellant’s Reply to
Commonwealth’s Motion to Dismiss, 10/1/12, at 5. As a result, the
Commonwealth filed a motion to dismiss Appellant’s PCRA petition,
reasoning that – since Appellant was no longer “serving a sentence of
imprisonment, probation[,] or parole for the crime” – Appellant was no
longer eligible for relief under the PCRA. See 42 Pa.C.S.A. § 9543(a)(1)(i).
Appellant responded to the Commonwealth’s motion to dismiss by claiming
that, with respect to individuals, like him, who were or are serving short
sentences, “the current state of the law [is] unfair, unjust[,] and sets up a
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complete violation of [a] petitioner’s rights to have the court address his
constitutional claims in the context of a [PCRA p]etition.” Appellant’s Reply
to Commonwealth’s Motion to Dismiss, 10/1/12, at 5.
As the PCRA court explained:
On January 4, 2013, the [PCRA] court sent [Appellant
notice, pursuant to Pennsylvania Rule of Criminal Procedure
907, that it intended to dismiss Appellant’s PCRA petition]
on February 5, 2013.
On February 7, 2013, [Appellant] . . . asked the PCRA court
not to dismiss the PCRA petition until the Supreme Court
decided [Commonwealth v. Turner, 80 A.3d 754 (Pa.
2013)]. The PCRA court agreed to defer its decision. . . .
On November 22, 2013, the Pennsylvania Supreme Court
decided Turner [and held that Section 9543(a)(1)(i) of the
PCRA was constitutional, even as applied to individuals
serving short sentences, because “due process does not
require the legislature to continue to provide collateral
review when the offender is no longer serving a sentence.”
Turner, 80 A.3d at 765. Therefore, on December 6, 2013,
the PCRA court dismissed Appellant’s PCRA petition].
PCRA Court Opinion, 4/4/14, at 2-3.
Appellant filed a timely, pro se notice of appeal.3 Appellant now raises
the following claims to this Court:4
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3
On February 24, 2014, this Court granted PCRA counsel’s petition to
withdraw his appearance and we remanded the case to the PCRA court, to
determine whether Appellant was eligible for court-appointed counsel.
Order, 2/24/14, at 1. Appellant responded by filing a letter with this Court,
indicating that he did not wish to be represented by counsel on appeal.
Appellant’s Letter, 3/3/14, at 1. Therefore, on July 21, 2014, this Court
remanded the case to the PCRA court and instructed the court “to conduct
an on-the-record determination as to whether Appellant’s waiver of counsel
(Footnote Continued Next Page)
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[1.] Whether [42 Pa.C.S.A. §] 9543(a)(1)(i) of the [PCRA]
is unconstitutional as applied to Appellant?
[2.] Whether the dismissal of the PCRA [petition] violates
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and the corresponding provisions
of the Pennsylvania Constitution in that the unavailability at
the time of trial of exculpatory evidence that has
subsequently become available [] would have changed the
outcome of the trial if it had been introduced. . . ?
Appellant’s Brief at 7.
As we have stated:
[T]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by [the]
evidence of record and is free of legal error. In evaluating a
PCRA court’s decision, our scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party.
Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).
The PCRA “provides for an action by which persons convicted of crimes
they did not commit and persons serving illegal sentences may obtain
_______________________
(Footnote Continued)
is knowing, intelligent[,] and voluntary, pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998).” Order, 7/21/14, at 1. On September 19,
2014, the PCRA court entered an order declaring: “after conducting a
Grazier hearing on August 27, 2014, [the PCRA] court hereby notifies the
Superior Court of Pennsylvania that [Appellant] has knowingly, intelligently,
and voluntarily waived his right to counsel for the appeal.” PCRA Court
Order, 9/19/14, at 1.
4
The PCRA court did not require that Appellant file a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), and Appellant did not file a Rule 1925(b) statement on
his own accord.
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collateral relief.” 42 Pa.C.S.A. § 9542. In relevant part, Section 9543 of the
PCRA provides:
(a) General rule. - To be eligible for relief under [the
PCRA], the petitioner must plead and prove by a
preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under
the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime . . .
42 Pa.C.S.A. § 9543(a)(1)(i).
Appellant has admitted that he is not “currently serving a sentence of
imprisonment, probation or parole” for his convictions. Indeed, Appellant
admitted that his probationary sentence expired on July 16, 2012 – well
before the PCRA court dismissed his PCRA petition in December 2014. See
Appellant’s Reply to Commonwealth’s Motion to Dismiss, 10/1/12, at 5.
Nevertheless, Appellant claims that 42 Pa.C.S.A. § 9543(a)(1)(i) violates his
procedural due process right to be heard because “[t]he Commonwealth
withheld exculpatory information[, and the] information did not become
available until” Appellant’s case was on direct appeal. Appellant’s Brief at
14; Appellant’s PCRA Petition, 6/14/12, at 9 (“[w]hile [Appellant] was aware
that something transpired in [the trial court] on February 5, 2009, it was not
until after the first trial was already over and the matter was on direct
appeal that this information truly came to light”). Appellant’s claim fails, as
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our Supreme Court has already rejected the very claim that Appellant brings
before this Court.
In Turner, Ms. Turner was convicted of conspiracy to deliver a
controlled substance and was sentenced to two years of reporting probation.
Turner, 80 A.3d at 758. Ms. Turner did not file a direct appeal from her
judgment of sentence; instead, Ms. Turner filed a PCRA petition and raised
ineffective assistance of counsel claims. Id.
Ms. Turner filed a number of amended or supplemental PCRA petitions
in the lower court – and did so until 11 days before her probationary
sentence was to be completed. Id. When Ms. Turner’s sentence was
complete, the Commonwealth filed a motion to dismiss the PCRA petition,
claiming that, because Ms. Turner was no longer serving her sentence of
probation, Ms. Turner was no longer eligible for relief under the PCRA. Id.
The PCRA court refused to dismiss the petition because, the PCRA court
reasoned, “barring [Ms. Turner] from obtaining collateral relief on her timely
claim of trial counsel ineffectiveness because she had completed serving her
sentence, as Section 9543(a)(1)(i) requires, would violate [Ms. Turner’s]
constitutional due process right to be heard on this issue.” Id. at 757-758.
The Commonwealth appealed the PCRA court’s final order in the case and
our Supreme Court reversed the PCRA court’s order.
Our Supreme Court rejected Ms. Turner’s claim that, as applied to her,
Section 9543(a)(1)(i) violated her procedural due process right to be heard.
As our High Court explained:
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We agree with the Commonwealth that due process does
not require the legislature to continue to provide collateral
review when the offender is no longer serving a sentence.
Analogously, because the common law and statutory writ of
habeas corpus in federal court challenges the basis of
criminal conviction and custody, it requires that a petitioner
be in custody before habeas jurisdiction can attach.
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)
(providing that the essence of the common law writ of
habeas corpus is an attack by a person in custody upon the
legality of that custody, and that the traditional function of
the writ is to secure release from illegal custody); U.S. ex
rel. Dessus v. Com. of Pa., 452 F.2d 557, 559-560 (3rd
Cir. 1971) (“the sine qua non of federal habeas corpus
jurisdiction is that petitioner be ‘in custody’ . . .” even as to
claims of constitutional dimension: “Thus, custody is the
passport to federal habeas corpus jurisdiction. Without
custody, there is no detention. Without detention, or the
possibility thereof, there is no federal habeas jurisdiction.” .
. . Accordingly, because [Ms. Turner’s] liberty is no longer
burdened by a state sentence, she has no due process right
to collateral review of that sentence.
Because individuals who are not serving a state sentence
have no liberty interest in and therefore no due process
right to collateral review of that sentence, the statutory
limitation of collateral review to individuals serving a
sentence of imprisonment, probation, or parole is consistent
with the due process prerequisite of a protected liberty
interest. 42 Pa.C.S.A. § 9543(a)(1)(i). Of course, the
legislature was free to extend a statutory right of collateral
review to individuals like [Mrs. Turner] who had completed
their sentence and, had they done so, they would be
constitutionally obligated to ensure that those rights were
impacted only in accord with due process. . . . However,
the legislature did not do so. Rather, the General
Assembly, through the PCRA, excluded from collateral
review those individuals who were no longer subject to a
state sentence, thereby limiting the statutory right of
collateral review to those whose liberty was constrained.
The legislature was aware that the result of the custody or
control requirement of Section 9543(a)(1)(i) would be that
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defendants with short sentences would not be eligible for
collateral relief. Indeed, that was the apparent intent: to
restrict collateral review to those who seek relief from a
state sentence. See [Commonwealth v. Ahlborn, 699
A.2d 718 (Pa. 1997)] (petitioner ineligible for PCRA relief
where, following filing of PCRA petition and pending hearing,
he was unconditionally released from prison). The
legislature’s exclusion from collateral relief of individuals
whose liberty is no longer restrained is consistent with the
eligibility requirements of habeas corpus review under the
general state habeas corpus statute, 42 Pa.C.S.A. § 6501,
et seq. . . .
The PCRA provides eligibility for relief for cognizable claims,
see 42 Pa.C.S.A. § 9543(a)(2), including claims of
ineffective assistance of trial counsel, and is the sole means
of obtaining collateral relief in Pennsylvania. Petitioners are
required to satisfy, inter alia, the criteria for eligibility for
relief, see 42 Pa.C.S.A. § 9543, and the timeliness
restrictions, [42 Pa.C.S.A. §] 9545. By further limiting the
eligibility for relief under the PCRA to petitioners serving
sentences, our legislature chose not to create any statutory
entitlement to collateral review for defendants who have
completed their sentences.
We therefore find no support for the PCRA court’s
conclusion or [Ms. Turner’s] argument that this legislative
enactment runs afoul of due process, as due process does
not afford relief absent a protected liberty interest.
Turner, 80 A.3d at 765-767 (internal footnotes omitted) (some internal
citations omitted).
Further, we note that, in the case at bar, Appellant admitted that he
knew of the underlying “facts” that supported his alleged Brady claim while
the case was on direct appeal to this Court. Appellant’s PCRA Petition,
6/14/12, at 9 (“[w]hile [Appellant] was aware that something transpired in
[the trial court] on February 5, 2009, it was not until after the first trial was
already over and the matter was on direct appeal that this information truly
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came to light”). Nevertheless, and even though Appellant knew that he was
serving a short sentence, Appellant chose to file a petition for allowance of
appeal with our Supreme Court, thus limiting the amount of time he would
have to file and litigate a PCRA petition.
Moreover, our Supreme Court denied Appellant’s petition for allowance
of appeal on May 1, 2012 – two-and-a-half months before Appellant’s
sentence was to expire. However, Appellant waited until June 14, 2012 to
file his current PCRA petition and, within this petition, Appellant did not
notify the PCRA court that his probationary term was soon to expire and
Appellant did not request that the PCRA court conduct an expedited review
of his PCRA petition.
Therefore, in accordance with our Supreme Court’s opinion in Turner,
we conclude that Section 9543(a)(1)(i) does not offend Appellant’s
procedural due process rights and that the PCRA court properly dismissed
Appellant’s petition, as Appellant is not eligible for relief under our PCRA.5
Order affirmed.
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5
Appellant’s second numbered argument on appeal concerns the merits of
Appellant’s substantive claim – that the Commonwealth “violated Brady v.
Maryland, 373 U.S. 83 (1963)[,] when it failed to disclose the existence of
an agreement between the Philadelphia [County] District Attorney’s Office
and John L. Benham, III, JoAnne Benham, and Ryan Brody, Shane Brody[,]
and Jocelyn Hayes to [Appellant] and his attorney.” See Appellant’s Brief at
15-19. However, since we have concluded that Appellant is not eligible for
relief under the PCRA, we need not analyze Appellant’s second claim on
appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
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