Com. v. Gervasi, T.

• Court: Superior Court of Pennsylvania
• Decided: November 7, 2024
• Docket: 1670 MDA 2023
• Status: Unpublished

Opinion

J-A19013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS S. GERVASI : : Appellant : No. 1670 MDA 2023

Appeal from the PCRA Order Entered October 30, 2023 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000440-2010

BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.E.: FILED NOVEMBER 07, 2024

Thomas S. Gervasi appeals from the order entered in the Lackawanna

County Court of Common Pleas on October 30, 2023, dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§

9541-9546. The PCRA court denied Gervasi’s petition, finding he is ineligible

for relief because he is no longer in custody. We agree and affirm.

Due to our disposition, a detailed recitation of the factual and procedural

history is unnecessary. Briefly, Gervasi was charged with numerous counts of

arson and related charges in relation to a fire at 1021 Mark Avenue in

Scranton, Pennsylvania on June 17, 2008.

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* Former Justice specially assigned to the Superior Court. J-A19013-24

Following an eight-day jury trial, Gervasi was found guilty of six counts

of arson−endangering persons, one count of arson−endangering property,

two counts of arson−recklessly burning or exploding, one count of insurance

fraud, and four counts of criminal mischief.

On March 16, 2012, the trial court imposed an aggregate sentence of 5

to 10 years’ incarceration, followed by one year of probation, and restitution

in the amount of $130,887.38. We affirmed the judgment of sentence on

direct appeal, and the Pennsylvania Supreme Court subsequently denied

allowance of appeal. See Commonwealth v. Gervasi, 1533 MDA 2012 (Pa.

Super., filed July 8, 2013) (unpublished memorandum), appeal denied, 84

A.3d 1062 (Pa. 2013).

On July 28, 2014, Gervasi timely filed a pro se first PCRA petition.

Counsel was appointed and filed an amended petition. Following an

evidentiary hearing, the PCRA court denied the petition. We affirmed the

denial on appeal, and our Supreme Court denied allowance of appeal. See

Commonwealth v. Gervasi, 821 MDA 2016 (Pa. Super., filed Feb. 14, 2017)

(unpublished memorandum), appeal denied, 170 A.3d 980 (Pa. 2017).

Gervasi subsequently filed a petition for writ of habeas corpus with the United

States District Court for the Middle District of Pennsylvania, as well as an

application for certificate of appealability with the Third Circuit Court of

Appeals, both of which were denied.

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On September 22, 2023, Gervasi filed the instant pro se PCRA petition.

The PCRA court issued notice of its intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907, on the basis that Gervasi was no longer

in custody. After consideration of Gervasi’s response to the Rule 907 notice,

the PCRA court denied the petition. This timely appeal followed.

As noted, the PCRA court found Gervasi was not eligible for PCRA relief

because he was no longer serving his sentence. We agree.

To be eligible for post-conviction relief,

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 at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation or parole for the crime;

42 Pa.C.S.A. § 9543(a)(l)(i).

Gervasi is ineligible for PCRA relief. The PCRA clearly states an appellant

not currently incarcerated or on probation or parole with regard to the

sentence for which PCRA relief is requested cannot establish eligibility for

PCRA relief. See id. Our Supreme Court has upheld this requirement even

where the petitioner initially filed the petition while still serving a sentence.

See Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (PCRA petitioner

who had completed his prison sentence prior to any final adjudication of his

PCRA petition, even though he initially filed the petition while still incarcerated,

was ineligible for PCRA relief). The statute and our case law both “clearly

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contemplate[] that the petitioner will be serving a sentence at both the

pleading and proof stages of the proceeding.” Id. at 720.

Gervasi was sentenced to 5 to 10 years’ incarceration, plus one year of

probation on March 16, 2012. Gervasi’s incarceration term therefore would

have ended in 2022 at the latest, with his probation ending in 2023.

Accordingly, Gervasi has completed serving the sentence on the crimes for

which he seeks relief.

In his response to the Rule 907 notice, Gervasi argued that his

outstanding restitution order makes him eligible for PCRA relief, because he is

in “custody” of the state as “he is subjected to a payment plan for restitution

which carries him into his 90’s.” Response to Notice of Intent to Dismiss,

10/16/23, at ¶ 2. Notably, Gervasi does not raise or renew this argument on

appeal. In any event, it is well settled that restitution does not make a

petitioner eligible for relief under the PCRA. See Commonwealth v. James,

771 A.2d 33, 36 (Pa. Super. 2001) (“the monitoring of appellant's restitution

payments does not make him eligible for relief under the PCRA.”). Under the

clear language of the PCRA, the petitioner must prove that he is “currently

serving a sentence of imprisonment, probation or parole for the crime.” 42

Pa.C.S.A. § 9543(a)(1)(i). Restitution is not included. Here, Gervasi is not

currently serving a sentence of imprisonment, probation or parole.

We are constrained to find Gervasi has failed to meet the requirements

of eligibility for relief under the PCRA. See 42 Pa.C.S.A § 9543(a)(1); see

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also Ahlborn, 699 A.2d at 720. Accordingly, we find the PCRA court correctly

dismissed the petition on that basis and affirm.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 11/07/2024

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