J-S26007-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

ROBERT CARL BOLUS

                         Appellant                 No. 1300 MDA 2016


                 Appeal from the PCRA Order July 5, 2016
           In the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0001602-2011


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 26, 2017

      Robert Carl Bolus appeals from the July 5, 2016 order dismissing his

petition for writ of coram nobis, which was treated as a PCRA petition. We

affirm.

      Appellant was convicted of making a false/fraudulent insurance claim

and attempted theft by deception arising from a March 17, 2009 accident

involving his tow truck and a dump truck.      Specifically, he submitted an

insurance claim for damages to the passenger side of his tow truck from

contact with the guardrail and the expense of towing the vehicle, which the

jury concluded were fraudulent. This Court summarized the facts giving rise

to Appellant’s convictions on direct appeal:

      On March 17, 2009, a tow truck owned by [Appellant] and
      operated by one of his employees [Conrad Zebrowski] was

* Former Justice specially assigned to the Superior Court.
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     involved in an accident with a dump truck in Altoona,
     Pennsylvania. [Appellant] filed an insurance claim with Motorist
     Insurance Company (“Motorist”), and was subsequently charged
     with the above referenced crimes.

           ...

     Trooper Jeffrey Hershey of the Pennsylvania State Police testified
     that he was the officer assigned to respond on site to the report
     of the collision, and that he categorized it as a “non-reportable
     accident,” as there were no injuries and neither vehicle required
     a tow for removal from the scene.          According to Trooper
     Hershey, the driver’s side mirror of the dump truck struck the
     driver’s side mirror of [Appellant]’s tow truck, and that the
     vehicle being towed by [Appellant]’s tow truck, a 2005
     International, also sustained damage to its side mirror.

     Three witnesses (Bernie Whetstone, the driver of the dump
     truck, Scott McClellan, the owner of the dump truck, and Conrad
     Zebrowski, [Appellant's] employee driving the tow truck at the
     time of the accident), all testified that the only damages they
     observed to the tow truck and the 2005 International were to
     the side mirrors. Mr. Zebrowski also testified that he observed
     no damage to the tow truck's "stinger" apparatus, and that he
     had tested it after the accident and found it to be in good
     working order. John Henry ("Henry"), an investigator for
     Motorist, testified that during his investigation, [Appellant]
     claimed that the passenger side of his tow truck had been
     damaged as a result of running into guardrails at the scene of
     the accident. According to Henry, his investigation confirmed
     that there were no such guardrails. Henry also testified that
     [Appellant] had submitted a towing bill for $6,300, even though
     the tow truck was driven from the scene.

           ...

     On March 8, 2012, [a] jury found [Appellant] guilty of the
     above-listed crimes. On July 11, 2012, the trial court sentenced
     [Appellant] to six to twenty-three months of incarceration on
     both counts, to be served concurrently.




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Commonwealth v. Bolus, 75 A.3d 552 (Pa.Super. 2013) (unpublished

memorandum) (citations to record omitted).

       This Court affirmed the judgment of sentence.         Appellant filed a

petition for allowance of appeal from the Pennsylvania Supreme Court, which

was denied on December 2, 2013. Commonwealth v. Bolus, 81 A.3d 74

(Pa. 2013). The United States Supreme Court denied writ of certiorari on

April 21, 2014. Bolus v. Pennsylvania, 134 S.Ct. 1899 (2014). On April

23, 2015, Appellant filed a petition for PCRA relief that was dismissed as

untimely.    He appealed that decision to this Court, but we dismissed the

appeal due to his failure to file a brief.

       On February 16, 2016, Appellant filed the instant petition for a writ of

error coram nobis. He claimed that his former employee, Edward Borgna,

testified in a December 17, 2015 civil proceeding that damage to the

International’s air-shield was not linked to the accident.       Similarly, he

represented that Scott McLellan, the owner of the dump truck, would testify

that there was no air-shield discovered in the debris at the scene. Appellant

argued that this newly-discovered evidence would have refuted Mr.

Zebrowski’s account of a damaged air-shield on the towed vehicle.1 If this

____________________________________________


1
  The record contains no testimony from Mr. Zebrowski regarding an “air-
shield” on either vehicle. N.T. Jury Trial, 3/5/12, at 128-140. Mr. Zebrowski
testified that, after the accident, he picked up a “fairing” from the road, a
part that “puts the air up around the box trailer.” Id. at 159. He thought
(Footnote Continued Next Page)


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evidence had been introduced at trial, Appellant maintained that it would

have    completely       undermined        Mr.    Zebrowski’s   credibility   and   the

Commonwealth’s “mirror to mirror” contact theory, and that he would have

been acquitted.23

       The Commonwealth moved to dismiss the petition pursuant to 42

Pa.C.S § 9543(a)(1), on the ground that Appellant’s coram nobis petition

was subsumed by the PCRA, and that he was ineligible for relief under that

statute.   The trial court adopted that position in its notice of its intent to

dismiss, and Appellant filed a response in opposition to dismissal. On July

25, 2016, the court deemed the coram nobis petition to be a PCRA petition,

concluded that Appellant was ineligible for PCRA relief as he was not serving

a sentence of incarceration, probation, or parole, and dismissed the petition.

42 Pa.C.S. § 9543(a)(1)(i). Appellant appealed and complied with the PCRA

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

                       _______________________
(Footnote Continued)

the fairing came from the towed vehicle, but he offered no opinion regarding
the cause of its separation. The Commonwealth’s expert confirmed that a
roof-mounted air-shield separated from the International, but opined that its
separation was due to wind, not the accident. Id. at 209.
2
  Both Mr. Borgna and Mr. McClellan testified at Appellant’s trial. Appellant
offers no explanation as to why their knowledge regarding the air-shield was
unavailable at that time or not discoverable with the exercise of due
diligence.  Thus, his claim would likely not qualify under the “newly-
discovered facts” exception to the PCRA time-bar. See Commonwealth v.
Burton, 158 A.3d 618 (Pa. 2017).




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complained of on appeal. The PCRA court filed its opinion pursuant to Rule

1925(a), and specifically incorporated its rationale for the dismissal from its

May 17, 2016 notice of intent to dismiss, and its July 25, 2016 order and

notice of right to appeal.

      Appellant presents one issue for our review: “Did the lower court err

by summarily dismissing [Appellant]’s petition for a writ of error coram nobis

based on its holding that [Appellant]’s claim was cognizable under and thus

subsumed by the PCRA?        Appellant’s brief at 4 (unnecessary capitalization

omitted).

      Our review of “a PCRA court’s decision is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether

its conclusions of law are free from error.” Commonwealth v. Mason, 130

A.3d 601, 617 (Pa. 2015).      The following well-settled principles regarding

collateral review apply. “Where a petitioner’s claim is cognizable under the

PCRA, the PCRA is the only method of obtaining collateral review.”

Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa. 2016); see also

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (if the

defendant’s PCRA claims “are cognizable under the PCRA, the common law

and statutory remedies now subsumed by the PCRA are not separately

available” to him). Since the PCRA was intended to subsume the common

law means of collateral relief such as habeas corpus and coram nobis, 42

Pa.C.S. § 9542, trial courts must treat petitions for common law collateral

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remedies as petitions for PCRA relief. Commonwealth v. Taylor, 65 A.3d

462, 466 (Pa.Super. 2013).

       Appellant argues that he is entitled to coram nobis relief because his

claim involves the unavailability at the time of trial of exculpatory factual

evidence that subsequently became available and would have changed the

outcome     of   the   trial   if   it   had    been   introduced.   He   relies   upon

Commonwealth v. Orsino, 178 A.2d 843 (Pa.Super. 1962), in support of

his contention that the purpose of corum nobis is to “bring before the court

rendering the judgment matters of fact which, if known at the time the

judgment was rendered, would have prevented its rendition.”               Id. at 846.

However, as the Commonwealth correctly points out, Orsino predated the

enactment of the PCRA, which the legislature mandated is the “sole means

of obtaining collateral relief,” and which encompasses coram nobis and

habeas corpus. 42 Pa.C.S. § 9542.

       Appellant argues further that since he was no longer eligible for PCRA

relief when he learned of Mr. Borgna’s subsequent testimony, his after-

discovered evidence claim4 was not cognizable under the PCRA, and thus,

____________________________________________


4
  Appellant uses the terms after-discovered evidence and newly-discovered
facts interchangeably although the terms have distinctly different meanings
in the context of the PCRA. “Newly-discovered facts” is the term used when
referring to an exception to the PCRA’s one year time-bar under subsection
9545(b)(1)(ii), and applies when “the facts upon which the claim is
predicated were unknown to the petitioner and could not have been
(Footnote Continued Next Page)


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coram nobis relief was available. Hence, he contends the trial court erred in

construing his petition as a PCRA petition and dismissing it. He argues that

Descardes, supra, supports his position that his claim was not cognizable

under the PCRA because he was no longer serving a sentence for the crime

when he first learned of the existence of the claim and could not have raised

it under the PCRA. Appellant’s brief at 9.

      PCRA eligibility is governed by 42 Pa.C.S. § 9543(a):

      (a)    General rule.-- To be eligible for relief under this
             subchapter, 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;

                             ...

             (2) That the conviction or sentence resulted from one or
             more of the following:
                        ...

                       (vi) The unavailability at the time of trial of
                       exculpatory evidence that has subsequently become
                       _______________________
(Footnote Continued)

ascertained by the exercise of due diligence.” For purposes of the PCRA,
after-discovered evidence is exculpatory evidence that was unavailable at
the time of trial, that only subsequently became available, “and would have
changed the outcome of the trial if it had been introduced.” 42 Pa.C.S §
9543(a)(2)(vi).      For a thorough discussion of the distinction, see
Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017).



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                  available and would have changed the outcome of
                  the trial if it had been introduced.

42 Pa.C.S. § 9543.

      Thus, PCRA eligibility is dependent on the status of the petitioner

under § 9543(a)(1), and the type of claim under § 9543(a)(2). Defendants

may seek collateral relief outside of the PCRA framework only where “the

defendant was never eligible for relief under the PCRA.”         Descardes,

supra at 502 (emphasis in original).     See In the Interest of A.P., 617

A.2d 764 (Pa.Super. 1992) (en banc) (permitting juvenile to file a nunc pro

tunc appeal because juveniles have no recourse for ineffective assistance of

counsel under the PCRA). However, where a defendant once was eligible for

PCRA relief, his only avenue of collateral review is through the PCRA, even if

he no longer meets the eligibility requirements at the time of appeal. See

Descardes, supra at 502 (defendant-appellee no longer serving sentence

must still seek relief vis-à-vis the PCRA); see also Commonwealth v.

Turner, 80 A.3d 754, 770 (Pa. 2013) (defendants who are no longer

incarcerated due to short sentences must seek relief under the PCRA). The

requirement that one be serving a sentence does not offend due process

“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.” Id. at 766.




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     Such a claim is cognizable under the PCRA pursuant to 42 Pa.C.S. §

9543(a)(2)(vi).   Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016).

Furthermore, Appellant at one time was eligible for PCRA relief even though

he is no longer eligible due to the fact his sentence has expired.   He was

convicted in this Commonwealth, served his sentence, and his claim was of

the type cognizable under the PCRA.       Contrary to Appellant’s argument,

Descardes does not stand for the proposition that once a defendant is no

longer serving his sentence, he may petition for collateral relief outside of

the PCRA. Indeed, such an interpretation directly contradicts the Supreme

Court’s holding in Descardes, where the defendant was not permitted to

seek relief outside the PCRA because he was no longer serving a sentence.

Descardes was not entitled to coram nobis review even though his

ineffective assistance of counsel claim was not recognized by the United

States Supreme Court until after the period for seeking PCRA relief had

expired.

     Appellant avers that he only learned of the evidence once his sentence

was complete, and thus, he could not have filed a PCRA petition raising that

claim while serving his sentence.    Appellant’s reply brief at 1.   In other

words, Appellant maintains that since the evidence was unknown until after

he completed his sentence, he was never eligible to seek PCRA relief for the




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particular claim he raises herein, and thus, coram nobis provides an avenue

for relief.5 This same argument was rejected in Descardes, supra.

       Appellant     attempts     to    distinguish   the   situation   herein   from

Descardes, maintaining that his claim is a factual one particularly suited to

coram nobis, rather than a legal claim based on counsel’s ineffectiveness.

Appellant’s reply brief at 1.       However, we find no case law, and Appellant

cites none, that suggests that the nature of the § 9543(a)(2) claim dictates

different eligibility treatment under the PCRA, and the Court’s reasoning in

Descardes refutes such a position. Just as Appellant’s factual claim herein

allegedly surfaced after completion of his sentence, the defendant’s legal

claim in Descardes arose after he completed his sentence, and with much

harsher collateral consequences.          Nonetheless, the fact that there was no

legal support for his claim until the period for filing a PCRA petition had

expired did not remove the claim from the purview of the PCRA. Descardes’

claim of ineffective assistance of counsel based on counsel’s failure to advise

him of the collateral consequences of his plea was cognizable under the

PCRA, and coram nobis relief was unavailable.               Since he was no longer

serving a sentence, however, he was ineligible for PCRA relief.

____________________________________________


5
  The record refutes Appellant’s contention in this regard. Appellant’s first
PCRA petition contained a virtually identical “after-discovered evidence”
claim based on Mr. Borgna’s knowledge that the International’s air-shield
was not damaged in the accident.



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      Descardes affirmed the long line of cases strictly construing the

requirement that the petitioner must be currently serving a sentence for the

crime in order to be eligible for PCRA relief. See Turner, supra; see also

Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1999) (a defendant

must be serving a sentence throughout the entire PCRA proceeding to be

eligible for relief); Commonwealth v. Plunkett, 151 A.3d 1108, 1113

(Pa.Super. 2016) (appellant no longer eligible for collateral review when his

sentence expired during pendency of his appeal from the denial of PCRA

relief); Commonwealth v. Shultz, 114 A.3d 865, 872 (Pa.Super. 2015)

(precluding PCRA relief where petitioner still serving a sentence, but where

sentence for the convictions associated with the petition had expired);

Commonwealth v. Volk, 138 A.3d 659, 665 (Pa.Super. 2016) (barring

PCRA relief where there was an unintentional and non-prejudicial delay in

the PCRA proceedings that allowed the petitioner’s sentence to expire).

      In sum, a petitioner cannot avoid the requirement of serving a

sentence, by filing a petition for writ of coram nobis, when his claim was

otherwise cognizable under the PCRA pursuant to § 9543(a)(2). For these

reasons, we conclude that the trial court correctly treated Appellant’s

petition for a writ of coram nobis as a PCRA petition, and properly dismissed

it because he was no longer eligible for relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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