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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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

____________________________________________


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
____________________________________________


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.

____________________________________________


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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