Com. v. Gervasi, T. ( 2024 )

J-A19013-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS S. GERVASI :
:
Appellant : No. 1670 MDA 2023
Appeal from the PCRA Order Entered October 30, 2023
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000440-2010
BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.E.: FILED NOVEMBER 07, 2024
Thomas S. Gervasi appeals from the order entered in the Lackawanna
County Court of Common Pleas on October 30, 2023, dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§
9541-9546. The PCRA court denied Gervasi’s petition, finding he is ineligible
for relief because he is no longer in custody. We agree and affirm.
Due to our disposition, a detailed recitation of the factual and procedural
history is unnecessary. Briefly, Gervasi was charged with numerous counts of
arson and related charges in relation to a fire at 1021 Mark Avenue in
Scranton, Pennsylvania on June 17, 2008.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Following an eight-day jury trial, Gervasi was found guilty of six counts
of arson−endangering persons, one count of arson−endangering property,
two counts of arson−recklessly burning or exploding, one count of insurance
fraud, and four counts of criminal mischief.
On March 16, 2012, the trial court imposed an aggregate sentence of 5
to 10 years’ incarceration, followed by one year of probation, and restitution
in the amount of $130,887.38. We affirmed the judgment of sentence on
direct appeal, and the Pennsylvania Supreme Court subsequently denied
allowance of appeal. See Commonwealth v. Gervasi, 1533 MDA 2012 (Pa.
Super., filed July 8, 2013) (unpublished memorandum), appeal denied, 84
A.3d 1062 (Pa. 2013).
On July 28, 2014, Gervasi timely filed a pro se first PCRA petition.
Counsel was appointed and filed an amended petition. Following an
evidentiary hearing, the PCRA court denied the petition. We affirmed the
denial on appeal, and our Supreme Court denied allowance of appeal. See
Commonwealth v. Gervasi, 821 MDA 2016 (Pa. Super., filed Feb. 14, 2017)
(unpublished memorandum), appeal denied, 170 A.3d 980 (Pa. 2017).
Gervasi subsequently filed a petition for writ of habeas corpus with the United
States District Court for the Middle District of Pennsylvania, as well as an
application for certificate of appealability with the Third Circuit Court of
Appeals, both of which were denied.
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On September 22, 2023, Gervasi filed the instant pro se PCRA petition.
The PCRA court issued notice of its intent to dismiss the petition without a
hearing pursuant to Pa.R.Crim.P. 907, on the basis that Gervasi was no longer
in custody. After consideration of Gervasi’s response to the Rule 907 notice,
the PCRA court denied the petition. This timely appeal followed.
As noted, the PCRA court found Gervasi was not eligible for PCRA relief
because he was no longer serving his sentence. We agree.
To be eligible for post-conviction relief,
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 at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation
or parole for the crime;
42 Pa.C.S.A. § 9543(a)(l)(i).
Gervasi is ineligible for PCRA relief. The PCRA clearly states an appellant
not currently incarcerated or on probation or parole with regard to the
sentence for which PCRA relief is requested cannot establish eligibility for
PCRA relief. See id. Our Supreme Court has upheld this requirement even
where the petitioner initially filed the petition while still serving a sentence.
See Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (PCRA petitioner
who had completed his prison sentence prior to any final adjudication of his
PCRA petition, even though he initially filed the petition while still incarcerated,
was ineligible for PCRA relief). The statute and our case law both “clearly
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contemplate[] that the petitioner will be serving a sentence at both the
pleading and proof stages of the proceeding.” Id. at 720.
Gervasi was sentenced to 5 to 10 years’ incarceration, plus one year of
probation on March 16, 2012. Gervasi’s incarceration term therefore would
have ended in 2022 at the latest, with his probation ending in 2023.
Accordingly, Gervasi has completed serving the sentence on the crimes for
which he seeks relief.
In his response to the Rule 907 notice, Gervasi argued that his
outstanding restitution order makes him eligible for PCRA relief, because he is
in “custody” of the state as “he is subjected to a payment plan for restitution
which carries him into his 90’s.” Response to Notice of Intent to Dismiss,
10/16/23, at ¶ 2. Notably, Gervasi does not raise or renew this argument on
appeal. In any event, it is well settled that restitution does not make a
petitioner eligible for relief under the PCRA. See Commonwealth v. James,
771 A.2d 33, 36 (Pa. Super. 2001) (“the monitoring of appellant's restitution
payments does not make him eligible for relief under the PCRA.”). Under the
clear language of the PCRA, the petitioner must prove that he is “currently
serving a sentence of imprisonment, probation or parole for the crime.” 42
Pa.C.S.A. § 9543(a)(1)(i). Restitution is not included. Here, Gervasi is not
currently serving a sentence of imprisonment, probation or parole.
We are constrained to find Gervasi has failed to meet the requirements
of eligibility for relief under the PCRA. See 42 Pa.C.S.A § 9543(a)(1); see
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also Ahlborn, 699 A.2d at 720. Accordingly, we find the PCRA court correctly
dismissed the petition on that basis and affirm.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/07/2024
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