J-S28017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1390 EDA 2015


                      Appeal from the Order April 6, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008648-2009


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 04, 2016

        John Safarowicz appeals, pro se, from the order of the Court of

Common Pleas of Philadelphia County that denied his petition for writ of

coram nobis. After careful review, we affirm.

        This case began with an investigation by the Internal Affairs Division of

the Philadelphia Police Department that culminated in the arrest of

Safarowicz, a Philadelphia police officer. On June 4, 2010, a jury convicted

Safarowicz of two counts terroristic threats, one count of official oppression

and one count of criminal mischief. On July 16, 2010, the court sentenced

Safarowicz to concurrent terms of two years’ probation for each of the



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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terroristic threats convictions with no further penalty for the remaining

offenses.

      The trial court set forth the subsequent procedural history of the case

as follows:

      On August 2, 2010, [Safarowicz] filed an appeal. On September
      15, 2010, the [c]ourt issued a Pa.R.A.P. 1925(b) order directing
      [Safarowicz] to file a statement of [errors] complained of on
      appeal.

      On November 29, 2010, [Safarowicz] filed a Petition to Submit
      Statement Pursuant to Pa.R.A.P. 1925(b) Nunc Pro Tunc, and a
      Statement of Errors Complained of on Appeal Pursuant to
      Pa.R.A.P. 1925(b) Nunc Pro Tunc.” On December 14, 2010, the
      trial court granted the petition, and on January 31, 2011 filed its
      opinion. On January 3, 2012, [Safarowicz] filed a Petition for
      Allowance of Appeal to the Supreme Court of Pennsylvania. On
      May 1, 2012, the Supreme Court of Pennsylvania denied
      [Safarowicz’s] Petition.

      On June 14, 2012, [Safarowicz] filed a Petition for Post
      Conviction Relief. On September 11, 2012, the Commonwealth
      filed a Petition to Dismiss [Safarowicz’s] Petition [because
      Safarowicz was no longer serving a sentence]. On October 1,
      2012, [Safarowicz] filed a response to the Commonwealth’s
      Motion to Dismiss. After a hearing on January 3, 2013, the court
      determined there was no merit to Safarowicz’s PCRA petition and
      sent a [Pa.R.Crim.P.] 907 letter to Safarowicz notifying him of
      the court’s intent to dismiss the PCRA petition at the next court
      listing. On January 4, 2013, the court sent the [Rule] 907 letter
      and relisted the case for dismissal on February 7, 2013.

      On February 7, 2013, [Safarowicz] noted that the identical due
      process issue that he raised in his PCRA Petition before the court
      was before the Pennsylvania Supreme Court in Commonwealth
      v. Turner, 80 A.3d 754 (Pa. 2013), and he requested this court
      not to dismiss his PCRA petition until the Supreme Court decided
      Turner. The PCRA court agreed to defer its decision since the
      Supreme Court was in the process of deciding Turner.

      The Pennsylvania Supreme Court decided Turner on November
      22, 2013, holding that due process does not require the

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     legislature to continue to provide collateral review when the
     offender is no longer serving a sentence.8
       8
         In Turner, the Supreme Court of Pennsylvania decided
       that conditioning the availability of post-conviction relief on
       whether the petitioner is currently serving a sentence is
       not unconstitutional because without a sentence, the
       petitioner has no liberty interest in collateral review of that
       sentence.

     On December 3, 2013, the Commonwealth filed a Supplemental
     Motion to Dismiss, and on December 4, 2013, [Safarowicz] filed
     a response to the Commonwealth’s Supplemental Motion. On
     December 6, 2013, the PCRA court held a hearing and granted
     the Commonwealth’s Motion to Dismiss.     On December 30,
     2013, [Safarowicz] filed an appeal.

     On February 24, 2014, the Superior Court granted [Safarowicz’s]
     PCRA attorney Jonathan Sobel’s withdrawal, and remanded the
     case to the PCRA court to determine [Safarowicz’s] eligibility for
     court-appointed counsel. On February 25, 2014, [Safarowicz]
     sent a letter to the Superior Court indicating he wanted to
     proceed pro se, and on April 4, 2014, the PCRA court filed its
     opinion.9
       9
         The court held that the Post Conviction Relief Act
       requirement that a petitioner be serving a sentence in
       order to be eligible for collateral relief is not
       unconstitutional because it does not violate the petitioner’s
       due process rights, nor does it deny the petitioner an
       opportunity for relief.

     On July 3, 2014, Attorney Raymond Roberts entered an
     appearance for [Safarowicz]. On July 21, 2014, the Superior
     Court remanded the case for the PCRA court to hold a Grazier
     hearing within 60 days to determine whether [Safarowicz’s]
     waiver of counsel was knowing, intelligent, and voluntary. The
     court held the Grazier hearing on August 27, 2014, and on
     September 18, 2014 notified the Superior Court that
     [Safarowicz] had knowingly, intelligently, and voluntarily waived
     his right to counsel for the appeal.

     On January 28, 2015, the Superior Court affirmed the court’s
     decision [of] December 6, 2013 dismissing [Safarowicz’s] PCRA
     petition. On February 9, 2015, [Safarowicz] filed a Petition for
     Writ of Error Coram Nobis. On April 6, 2015, the court denied

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        [Safarowicz’s] Petition by way of an order.      On May 5, 2015,
        [Safarowicz] filed this appeal.

Trial Court Opinion, 10/27/15, at 2-5.

        On appeal, Safarowicz raises the following issues for our review:

        1. Whether [Safarowicz] is entitled to relief under writ of error of
           coram nobis.

        2. Whether the dismissal of the writ of error coram nobis
           violates the Fifth, Sixth, Eight and Fourteenth Amendments to
           the United States Constitution and the corresponding
           provisions of the Pennsylvania Constitution in that the
           unavailability at the time of exculpatory evidence that has
           subsequently become available [] would have changed the
           outcome of the trial if it had been introduced.1

Appellant’s Brief, at 8.

        Initially, we note that the substance of Safarowicz’s petition is that the

Commonwealth committed a Brady2 violation by failing “to disclose the

existence of an agreement between the Philadelphia District Attorney’s

Office, John L. Benham, JoAnn Benham, Ryan Brody, Shane Brody, Jocelyn

Hayes and Brian Grady, Esquire. The suppression of this favorable evidence

severely prejudiced Petitioner.”         Petition for Writ of Error Coram Nobis,

8/27/14, at 8. He argues that pursuant to the agreement, charges against

the Brodys and Hayes for their assault on Safarowicz’s brother-in-law,
____________________________________________


1
   We note that but for the substitution of the term “writ of error of coram
nobis” for the term “PCRA,” this is the same issue Safarowicz raised in his
appeal of the order dismissing his PCRA petition. See Commonwealth v.
Safarowicz, No. 74 EDA 2014, unpublished memorandum at 6 (Pa. Super.
filed January 29, 2015).
2
    Brady v. Maryland, 373 U.S. 83 (1963).



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Benham, would be dismissed or reduced if Thomas Maisch (Ryan’s

roommate) and Sarah Livingston (Ryan’s fiancée) agreed not to press

charges against Safarowicz for assaulting them. Id. at 6.

      The determinative threshold issue in this case is whether Safarowicz is

eligible for coram nobis relief. Like the trial court, we believe he is not.

      In addressing Safarowicz’s argument, we must be mindful of section

9542 of the PCRA, which provides in relevant part:

      This subchapter provides for an action by which persons
      convicted of crimes they did not commit and persons serving
      illegal sentences may obtain collateral relief.        The action
      established in this subchapter shall be the sole means of
      obtaining collateral relief and encompasses all other common law
      and statutory remedies for the same purpose that exist when
      this subchapter takes effect, including habeas corpus and coram
      nobis.

42 Pa.C.S. § 9542.

      Recently, in Commonwealth v. Descardes, No. 27 MAP 2015, 2016

WL 1249964 (Pa. March 29, 2016) (Descardes II), our Supreme Court

addressed the unavailability of coram nobis relief where a claim is cognizable

under the PCRA but the petitioner is ineligible for relief because he has

completed his sentence.

      In 2006, Descardes, a Haitian national, pled guilty to insurance fraud

and conspiracy to commit insurance fraud.             Prior to pleading guilty,

Descardes was not informed that deportation was a collateral consequence

of his plea under the Immigration and Naturalization Act, 8 U.S.C. §

1227(a)(2)(A)(iii). On November 20, 2006, he was sentenced to one year of


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probation and a fine.    He did not appeal the judgment of sentence.           He

completed his sentence in November 2007.         In 2009, he left the United

States on personal business, and when he attempted to return, he was

denied reentry due to his felony conviction.

      In December 2009, Descardes filed a petition for coram nobis,

asserting trial counsel ineffectiveness for failing to inform him that

deportation was a collateral consequence of his plea. He sought to have his

conviction vacated and to withdraw his guilty plea. The trial court treated

the request as a PCRA petition, which it dismissed as untimely. The court

further noted that under Commonwealth v. Frometa, 555 A.2d 92 (Pa.

1989), counsel could not be held ineffective for failing to warn Descardes of

the collateral consequences of his guilty plea, including deportation.

      On May 26, 2010, Descardes filed a second coram nobis petition based

on Padilla v. Kentucky, 559 U.S. 536 (2010), where, on March 31, 2010,

the United States Supreme Court held that counsel is obligated to inform a

defendant that the offense he is pleading guilty to will result in deportation,

thereby abrogating Frometa. The trial court treated the petition as a timely

filed first PCRA petition, concluding that it fell within the exception to the

one-year   time   limitation   because   Descardes   was   asserting     a   newly

recognized constitutional right that he argued applied retroactively. See 42

Pa.C.S. § 9545(b)(1)(iii). The trial court vacated Descardes’ conviction and

ordered that his guilty plea be withdrawn.




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      The Commonwealth appealed to this Court. See Commonwealth v.

Descardes, 101 A.3d 105 (Pa. Super. 2014) (Descardes I). The en banc

majority opinion authored by Judge Panella, determined that the trial court

erred by treating the coram nobis petition as a PCRA petition because

Descardes had completed his sentence.       However, the majority concluded

that because the PCRA did not provide a remedy for Descardes’ claim, the

trial court should have treated his petition as a coram nobis petition.

      Nevertheless, because the United States Supreme Court held in

Chaidez v. United States, -- U.S. --, 133 S.Ct. 1103 (2013), that the new

rule announced in Padilla did not apply retroactively, the majority reversed

the trial court’s order and remanded for further proceedings.

      Judge Bowes authored a concurring and dissenting opinion in which

she explained that where a claim, such as Descardes’ claim of ineffective

assistance of counsel, is cognizable under the PCRA, the statute is the sole

means of obtaining collateral relief. “Simply put, so long as the issue could

have been leveled in a PCRA petition . . . the person is foreclosed from

seeking relief via a common law writ, even though PCRA relief is no longer

available or the person was not entitled to a remedy under the statute.”

Descardes I, at 115 (Bowes, J. concurring and dissenting).

      The Commonwealth sought allowance of appeal, which our Supreme

Court granted.    The Court vacated the judgment below and dismissed

Descardes’ petition, noting:




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      This Court has consistently held that, pursuant to the plain
      language of Section 9542, where a claim is cognizable under the
      PCRA, the PCRA is the only method of obtaining collateral
      review. See [Commonwealth v.] Ahlborn[, 699 A.2d 718 (Pa.
      1997)]; [Commonwealth v.] Peterkin[, 722 A.2d 638 (Pa.
      1998); [Commonwealth v.] Hall[, 771 A.2d 1232 (Pa. 2001)];
      see also Commonwealth v. Turner, 80 A.3d 754, 770 (Pa.
      2013) (“The PCRA at Section 9542 subsumes the remedies of
      habeas corpus and coram nobis.”). It is equally well established
      that Appellee’s claim of ineffective assistance of plea counsel,
      which is based on counsel’s failure to advise him of the collateral
      consequences of his plea was cognizable under the PCRA.

                                     ...

      Moreover, the fact that Appellee’s claim, had he raised it while
      still serving his sentence, would likely have been held to be
      meritless under Frometa, the prevailing law at the time, does
      not mean that the claim was not cognizable under the PCRA.
      Indeed, . . . it clearly was. The fact that there was no legal
      support for Appellee’s ineffectiveness claim until after the time
      period for filing a PCRA petition had expired does not remove the
      claim itself from the purview of the PCRA.

Descardes II, at *7 (emphasis in original).

      Like a claim of ineffective assistance of counsel, a claim that the

Commonwealth committed a Brady violation is cognizable under the PCRA.

      In addition to the various showings necessary to establish
      cognizability under the PCRA (in these instances, those
      governing the presentation of previously unavailable exculpatory
      evidence, 42 Pa.C.S.A. §9543(a)(2)(vi)), to establish a Brady
      violation Appellant must demonstrate that the prosecution
      suppressed evidence and, in so doing, prejudiced Appellant.
      Commonwealth v. Paddy, 800 A.2d 294, 305 (Pa. 2002).

Commonwealth v. Dennis, 950 A.2d 945, 966.              Indeed, in his PCRA

petition Safarowicz raised a Brady violation. PCRA Petition, 6/14/12, at 9-

14.




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      Because Safarowicz’s Brady claim was cognizable under the PCRA, it

is clear pursuant to Descardes II that the PCRA is his sole means of

obtaining collateral relief.   Accordingly, the trial court properly denied

Safarowicz’s coram nobis petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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