Com. v. Tierno, W.

J-S04017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM JOHN TIERNO, :
:
Appellant : No. 953 MDA 2017
Appeal from the Order Entered May 23, 2017
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000866-2009,
CP-54-CR-0001290-2009
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JUNE 15, 2018
Appellant, William John Tierno, appeals pro se from the May 23, 2017
Order entered in the Schuylkill County Court of Common Pleas dismissing his
Petition for Writ of Habeas Corpus. We affirm.
This Court previously set forth the underlying facts, so we will not
repeat them here. See Commonwealth v. Tierno, No. 974 MDA 2015 (Pa.
Super. Aug. 23, 2016) (unpublished memorandum); Commonwealth v.
Tierno, 81 A.3d 1005 (Pa. Super. 2013) (unpublished memorandum).
Briefly, on August 30, 2010, Appellant entered guilty pleas at two
dockets: (1) No. CP-54-CR-0000866-2009 to one count each of Robbery,
Criminal Conspiracy, Theft by Unlawful Taking, and Receiving Stolen
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Property;1 and (2) No. CP-54-CR-0001290-2009 to one count each of
Robbery, Criminal Conspiracy, Theft by Unlawful Taking, and Terroristic
Threats.2 That same day, the trial court imposed the negotiated aggregate
sentence of 12 to 24 years’ incarceration.
This Court dismissed Appellant’s direct appeal on December 29, 2011
after Appellant failed to file an appellate brief. Commonwealth v. Tierno,
No. 1299 MDA 2011 (Pa. Super. Dec. 29, 2011) (per curiam). Appellant did
not seek review by the Pennsylvania Supreme Court.
Over the next several years, Appellant filed two PCRA Petitions, both
of which were dismissed.
On May 4, 2017, Appellant filed the instant Petition for Writ of Habeas
Corpus, arguing that he was subject to cruel and unusual punishment insofar
as the Department of Corrections (“DOC”) refused him treatment for
Hepatitis C. Appellant did not append any supporting documentation to his
Petition, and he did not allege that he had exhausted his administrative and
other remedies.
On May 23, 2017, the trial court denied Appellant’s Petition for Writ of
Habeas Corpus without a hearing.
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118 Pa.C.S. § 3701; 18 Pa.C.S. § 903; 18 Pa.C.S. § 3921; and 18 Pa.C.S. §
3925, respectively.
218 Pa.C.S. § 3701; 18 Pa.C.S. § 903; 18 Pa.C.S. § 3921; and 18 Pa.C.S. §
2706, respectively.
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Appellant timely filed a pro se Notice of Appeal. Both Appellant and
the court complied with Pa.R.A.P. 1925.
Appellant presents three issues for our review:
1. Whether a Petition for Writ of Habeas Corpus is available to
challenge the continued vitality of sentence and confinement
where conditions of confinement constitute cruel and unusual
punishment due to the prison the sentencing court ordered
sentence to be served in (Pa. Dept. of Corrections) deliberately
and knowingly refuse[d] to provide treatment for “life-
threatening disease Hepatitis-C” in violation of Article 1 § 13 of
the Pa. Constitution and the 8th and 14th Amendments of the
U.S. Constitution?
2. Whether a Habeas Corpus Petitioner is entitled to a hearing to
plead and prove the prison’s administrative remedies (“grievance
system”) [are] ineffective?
3. Whether [the] lower court erred by not holding a hearing on
the Habeas Corpus Petition?
Appellant’s Brief at 3.
We review a trial court’s order denying a petition for writ of habeas
corpus for an abuse of discretion. Rivera v. Pennsylvania Dep’t. of Corr.,
837 A.2d 525, 528 (Pa. Super. 2003). In Pennsylvania, the availability of
habeas corpus is prescribed and limited by statute. The statutory remedy of
habeas corpus empowers any judge of a court of record to issue a writ “to
inquire into the cause of detention.” 42 Pa.C.S. § 6502.
“A habeas corpus court, in determining whether a petition for a writ
requires a hearing, must accept as true all allegations of fact contained in
the petition which are non-frivolous, specific, and not contradicted by the
record, even though those allegations may be controverted by the
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Commonwealth.” Commonwealth ex rel. West v. Myers, 222 A.2d 918,
920 (Pa. 1966) (citations omitted). “[T]he petition may be denied
summarily and without a hearing where it fails to allege facts making out a
prima facie case for the issuance of the writ.” Balsamo v. Mazurkiewicz,
611 A.2d 1250, 1253 (Pa. Super. 1992) (citations omitted). “A hearing is
not required when there is no issue of fact to be decided or when the facts
averred by relator, even if believed, are insufficient to warrant granting the
writ of habeas corpus.” Commonwealth v. Judge, 916 A.2d 511, 521,
n.13 (Pa. 2007) (citation omitted).
Pursuant to the statute, habeas corpus relief is available “only when no
other remedy is available for the condition the petitioner alleges or available
remedies are exhausted or ineffectual.” Commonwealth ex rel. Fortune
v. Dragovich, 792 A.2d 1257, 1259 (Pa. Super. 2002) (citation omitted).
Since our function is not “to superintend the treatment and discipline of
prisoners in penal institutions[,]” Pennsylvania courts may not entertain
habeas corpus “merely to correct prison conditions [that] can be remedied
through an appeal to prison authorities or to an administrative agency.” Id.
(citations omitted). Thus, “[t]he failure or refusal of prison authorities to
exercise discretion in a particular way may not be reviewed in a habeas
corpus proceeding.” Id. (citation omitted).
“Accordingly, the writ may be used only to extricate a petitioner from
illegal confinement or to secure relief from conditions of confinement that
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constitute cruel and unusual punishment.” Id. (citations omitted). This
Court has held that prisoner challenges to the administrative discretion of
prison officials “are appropriately addressed in a claim of deprivation of
constitutional rights under color of state law as prescribed by the federal
Civil Rights Act, 42 U.S.C. § 1983.” Id. at 1259-60 (citation omitted).
“Although the potential for relief in such an action does not preclude review
of claims in habeas corpus, such claims must be based on ‘patent and
serious deprivations’ of a constitutional right sufficient to establish cruel and
unusual punishment” in order to be addressed in a petition for writ of habeas
corpus. Id. (citation and quotation marks omitted).
In Appellant’s May 4, 2017 Petition for Writ of Habeas Corpus,
Appellant summarily claimed that the prison’s refusal to provide him with
necessary medical treatment is causing him irreparable harm. Appellant did
not provide any allegations about his previous attempts to obtain relief
through available administrative remedies. Specifically, Appellant did not
allege that “no other remedy is available for the condition the petitioner
alleges or available remedies are exhausted or ineffectual.” Dragovich, 792
A.2d at 1259. Thus, he was not entitled to a hearing because he failed “to
allege facts making out a prima facie case for the issuance of the writ.”
Balsamo, 611 A.2d at 1253.
Moreover, Appellant has provided no documentation to the lower court
supporting his bald allegations of general denial of treatment. Although he
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appended documents to his appellate brief, these documents are not
properly admitted evidence and, moreover, fail to support his allegations of
cruel and unusual punishment.3 This deficiency makes clear that Appellant
has failed to demonstrate: (1) that “no other remedy is available for the
condition the petitioner alleges or available remedies are exhausted or
ineffectual[;]” or (2) “patent and serious deprivations of a constitutional
right sufficient to establish cruel and unusual punishment.” Dragovich, 792
A.2d at 1259.4
Accordingly, we conclude that Appellant’s allegations provide no basis
upon which the trial court might issue a writ of habeas corpus. Thus, the
trial court did not abuse its discretion in dismissing Appellant’s Petition
without a hearing. Accordingly, we affirm.
Order affirmed.
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3 “[A]ny document which is not part of the officially certified record is
deemed non-existent—a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in the reproduced
record.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en
banc) (citations omitted).
4 Even if we could consider these supporting documents, they demonstrate
that Appellant failed to exhaust available remedies. See, e.g., Appellant’s
Brief at Appendix C, SCI Greene “Initial Review Response” dated 3/24/17,
denying Grievance (indicating available remedy process Appellant failed to
utilize, and concluding Appellant was not entitled to relief through the
prison’s “grievance procedure” because he failed to exhaust “all other
options.”). Moreover, they fail to support his claim of cruel and unusual
punishment. See id. (indicating Appellant’s lab values are within normal
range and there is no damage to his liver that requires the medication
(Harvoni) that he requested).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/15/2018
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