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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Aug. 23, 2016) (unpublished memorandum); Commonwealth v.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 Super. 2013) (unpublished memorandum).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.

____________________________________________


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.
____________________________________________


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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