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[U] Commonwealth of Pennsylvania v. Piasecki

Superior Court of Pennsylvania

February 21, 2014



Appeal from the PCRA Order of April 24, 2013 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005364-2009




Appellant, Jason Piasecki, appeals from the order entered on April 24, 2013 denying his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We dismiss the appeal.

We have previously summarized the factual background of this case as follows. "[T]housands of video files, perhaps over [4,000], were found on [Appellant's] computer. Ninety-three contained child pornography and the rest, apparently, consisted of adult videos. The evidence showed that many videos could have come to be [o]n Appellant's computer during mass downloads of pornography." Commonwealth v. Piasecki, 32 A.3d 280 (Pa. Super. 2011) (unpublished memorandum), at 2, appeal denied, 38 A.3d 824 (Pa. 2012). "Eventually, [Appellant] indicated [to police that] he had seen child pornography [20] or [30] times. While first claiming he immediately deleted any child pornography that he saw, he later told police that he would 'click' to the end of such videos." Id. at 4 (citation omitted). When shown a victim from one of the videos found on his computer, Appellant stated that he may have seen her on his computer. Id. (citation omitted).

The procedural history of this case is as follows. On September 8, 2009, a 30-count information was filed against Appellant. The information consisted of 15 counts of possession of child pornography[1] and 15 counts of dissemination of child pornography.[2] Appellant proceeded to a bench trial. The trial court sustained Appellant's demurrer with respect to the 15 counts of dissemination of child pornography; however, the trial court found Appellant guilty of the 15 counts of possession of child pornography. On April 26, 2010, Appellant was sentenced to three years of probation at each count, to be served concurrently. On direct appeal, this Court affirmed Appellant's judgment of sentence and our Supreme Court denied allocatur. On December 19, 2012, Appellant filed a counseled PCRA petition. He filed a supplement to his petition on March 28, 2013. The PCRA court held a two-day evidentiary hearing and, on April 24, 2013, denied Appellant's PCRA petition. Two days later, on April 26, 2013, Appellant's term of probation expired.[3] This timely appeal followed.[4]

Appellant presents three issues for our review:
1.Is Appellant entitled to review of the lower court's denial of [ ]PCRA[] relief where he had not completed serving his sentence at the time of the [PCRA] court's opinion but had completed serving his sentence at [the] time he filed the appeal of the denial of his PCRA petition?
2.Was trial counsel ineffective in failing to file and litigate a pre-trial motion to suppress the evidence derived from a search of Appellant's computer prior to obtaining a search warrant, where he had an expectation of privacy in its contents, and the intrusion violated the Wiretapping and Electronic Surveillance Control Act, 18 Pa.[C.S.A.] § 5701 et. seq[,] thus violating rights secured to him by the Constitution of the Commonwealth of Pennsylvania, Article 1, Sections 8 and 9, as well as the [Fourth and Fourteenth Amendments to the] Constitution of the United States of America . . . ?
3. Was trial counsel ineffective by failing to object to the admission of Appellant's confession on the basis of the corpus delecti rule?

Appellant's Brief at 4.

In his first issue on appeal, Appellant contends that this case is not moot. The PCRA court, in its Rule 1925(a) opinion, found that this case is moot because Appellant's term of probation expired after Appellant's evidentiary hearing and entry of the order denying his PCRA claims but before the PCRA court filed its Rule 1925(a) opinion. PCRA Court Opinion, 7/2/13, at 2-4; see also 42 Pa.C.S.A. § 9543(a)(1)(i) (requiring, among other things, that eligibility for PCRA relief depends upon petitioner serving a sentence of probation at the time relief is granted).

"If events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot." In re S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (citation omitted). Whether this case is moot is a question of statutory interpretation, therefore it is a pure question of law and our standard of review is de novo and our scope of review is plenary. See A.M.S. v. M.R.C., 70 A.3d 830, 832 (Pa. Super. 2013) (citation omitted).

As we have explained,

In interpreting a statute[ w]e are constrained by the rules of statutory interpretation, particularly as found in the Statutory Construction Act. 1 Pa.C.S.A. §§ 1501–1991. The goal in interpreting any statute is to ascertain and effectuate the intention of the General Assembly. Our Supreme Court has stated that the plain language of a statute is in general the best indication of the legislative intent that gave rise to the statute. When the language is clear, explicit, and free from any ambiguity, we discern intent from the language alone, and not from the arguments based on legislative history or "spirit" of the statute. We must construe words and phrases in the statute according to their common and approved usage. We also must construe a statute in such a way as to give effect to all its provisions, if possible, thereby avoiding the need to label any provision as mere surplusage.

C.B. v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013) (citation omitted).

The PCRA provides, in relevant part, that:
(a) General rule.--To be eligible for relief under [the PCRA], the petitioner must plead and prove by a preponderance of the evidence . . .
(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;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.

42 Pa.C.S.A. § 9543(a)(1). Appellant argues that this case is not moot for three reasons. First, Appellant argues that he was eligible for relief at the pleading and proof stage of the proceedings, i.e., when the PCRA court issued its ruling, and therefore the case is not moot. He contends that this Court could reverse and order further proceedings, including a new trial. This argument is without merit. Appellant ignores the phrase "at the time relief is granted" in the above-quoted statutory provision. If this Court were to reverse the decision of the PCRA court and order a new trial we would be granting Appellant relief, which is exactly what the statute prohibits unless Appellant is currently serving a term of imprisonment, probation, or parole.

Our Supreme Court and this Court have consistently interpreted Section 9543(a) to require that a PCRA petitioner be serving a sentence while relief is being sought. Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997); Commonwealth v. Martin, 832 A.2d 1141, 1143 (Pa. Super. 2003), appeal denied, 843 A.2d 1237 (Pa. 2004); Commonwealth v. James, 771 A.2d 33 (Pa. Super. 2001); Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa. Super. 1997). This Court has also rejected the distinction that Appellant is attempting to draw. We have found that if a petitioner finishes serving his sentence while an appeal is pending, the case is moot and we may not grant relief. See Commonwealth v. Schmohl, 975 A.2d 1144, 1149 (Pa. Super. 2009), citing Commonwealth v. King, 786 A.2d 993, 996–97 (Pa. Super. 2001). Accordingly, the fact that Appellant's term of probation has expired is conclusive and it is irrelevant that the PCRA court denied relief prior to the expiration of Appellant's sentence.

Appellant next contends that he is entitled to relief because of the collateral consequences of his conviction. However, our Supreme Court and this Court have found that "the [PCRA] preclude[s] relief for those petitioners whose sentences have expired, regardless of the collateral consequences of their sentence." Fisher, 703 A.2d at 716; Ahlborn, 699 A.2d at 721; Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010) (applying this rule in the context of a sex offender); Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004), cert denied, 546 U.S. 909 (2005). Accordingly, Appellant's collateral consequences do not provide a basis for us to grant relief under the PCRA.

Finally, Appellant argues that he is constitutionally entitled to review of the PCRA court's determination. This argument is also without merit. As our Supreme Court has explained, "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[.]" Commonwealth v. Turner, 80 A.3d 754, 766 (Pa. 2013). Thus, Appellant does not have a constitutional right to review of the PCRA court's disposition of his claim for relief. As such, Appellant's appeal is moot and we will dismiss the appeal. See In re W.H., 25 A.3d 330, 334 (Pa. Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011).

Appeal dismissed. Judgment Entered

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