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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Brady2violation 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