J-S79020-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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