J-S34002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ADAM CHRISTOPHER HARDIN                  :
                                          :
                    Appellant             :   No. 240 WDA 2018

                Appeal from the PCRA Order January 9, 2018
  In the Court of Common Pleas of Blair County Criminal Division at No(s):
                          CP-07-CR-0002586-2013


BEFORE:    BOWES, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 22, 2018

      Adam Christopher Hardin appeals pro se from the PCRA court order

entered on January 9, 2018.      As this appeal is procedurally defective, we

quash.

      On October 22, 2015, a jury convicted Appellant of tampering with a

public water system, weapons of mass destruction, terroristic threats, and two

counts each of unlawful use of computer and criminal use of a communication

facility. The convictions stem from a series of threats that Appellant leveled

against the residents of Blair County, Pennsylvania, during the fall of 2013.

Specifically, on October 23, 2013, Appellant sent emails to reporters affiliated

with the Altoona Mirror and the WTAJ television station indicating that a bomb

was hidden at the Blair County Courthouse that was set to detonate “upon a

certain case.” N.T., 8/12/15, at 36, 41, 46. Two days later, Appellant sent


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* Retired Senior Judge assigned to the Superior Court.
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another email to the Altoona Mirror that stated: (1) his earlier bomb threat

was a hoax; (2) the reservoirs and facilities that service the Hollidaysburg

water supply had been contaminated with toxins; and (3) three additional

bombs had been placed around Hollidaysburg. That email read,

      The Plan [Nine Reservoir], the Muleshoe [Reservoir], as well as
      the [Altoona Water Authority] transmission system has [sic] been
      contaminated with a form of toxin that cannot be filtered by
      conventional means[,] the affects [sic] of which will not be seen
      for five to nine days after consumption. As for the bomb [threat,]
      that was a test to see the response action. Now there are three
      other bombs distribute[d] through Hollidaysburg that will go off
      upon a random number generator.

Id. at 47-48. An investigation traced the emails to Appellant, an inmate at

the Blair County prison, who transmitted the threats from a computer in the

prison law library.

      On November 30, 2015, the trial court imposed an aggregate term of

thirty-two to ninety-six months imprisonment.      The sentence was imposed

consecutive to a forty-to-eighty-month term of imprisonment issued on the

same date by a different trial court in an unrelated case. As it relates to this

appeal, Appellant was ordered to pay $2,000 in fines and $29,311.74 in

restitution.   Appellant’s judgment of sentence became final on August 16,

2016, when this Court granted his request to discontinue the ensuing direct

appeal. See Commonwealth v. Conway, 706 A.2d 1243 (Pa.Super. 1997)

(judgment of sentence became final when direct appeal was discontinued at

defendant’s request).




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       On April 10, 2017, Appellant timely filed a PCRA petition. The pro se

petition alleged trial counsel’s ineffectiveness for failing to present video or

testimonial evidence to demonstrate that he was not in the prison library when

the threatening emails were sent. However, appointed counsel subsequently

informed the PCRA court that Appellant wanted to withdraw the PCRA petition.

After an on-the-record colloquy, the PCRA court confirmed that Appellant’s

decision to discontinue the PCRA proceeding was knowing, intelligent, and

voluntary. On January 9, 2018, the PCRA court granted Appellant’s request

to withdraw his petition.        Significantly, in granting Appellant’s request to

withdraw the PCRA petition, the court also approved Appellant’s entreaty to

suspend the repayment of fines and restitution while he is incarcerated, i.e.,

at least three years.      However, apparently experiencing regrets about his

decision to discontinue the PCRA petition, Appellant timely filed the instant

pro se appeal from the January 9, 2018 order granting his request for relief.1



____________________________________________


1Prior to filing the notice of appeal, Appellant filed a pro se motion to discharge
all counsel because they provided ineffective assistance during the jury trial.
As Appellant previously withdrew the PCRA petition, the PCRA court accurately
noted that nothing was currently pending before it, and denied the motion to
discharge counsel as moot.

Additionally, we observe that the postmark attached to Appellant’s notice of
appeal is dated February 5, 2018. Pursuant to the prisoner mailbox rule,
which provides that a document is considered filed on the date it was delivered
to prison authorities for mailing, we consider the petition to have been filed
that date. See Commonwealth v. Chambers, 35 A.3d 34, 38-39 (Pa.Super.
2011); Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa.Super. 2001).


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       Appellant complied with the PCRA court’s order to file a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b),

wherein he re-asserted trial counsel’s ineffectiveness, added new claims of

ineffective assistance, and asserted a novel challenge to the trial court’s jury

instructions. The trial court issued a Rule 1925(a) opinion that determined

that all of Appellant’s issues were waived, in part, because Appellant had

withdrawn his timely PCRA petition.

       On appeal, Appellant presents seven issues for our review, none of

which relates to the January 9, 2018 order granting his request for relief.2


____________________________________________


2 Functionally, there is no determination to appeal. By electing to discontinue
the PCRA proceeding, Appellant rendered his April 10, 2017 PCRA petition a
legal nullity. Nevertheless, ignoring this reality, Appellant levels the following
arguments that challenge trial counsel’s representation, his convictions, and
the judgment of sentence:

       1) Was counsel ineffective for not obtain[ing] Blair County jail
       footage, that clearly established that Appellant was not in the law
       library at th[e] time that a threat was made against the public
       water system?

       2) Was counsel ineffective for not receiving a deposition from the
       prison guard (C.O. Alger), who’s [sic] testimony . . . would have
       [provided] an alibi and exonerated [Appellant] of all but 2
       charges[?]

       3) Was counsel ineffective for not asking Judge Sullivan to recuse
       himself, due to the fact that Judge Sullivan previously represented
       me as my [a]ttorney in youth proceedings?

       4) Was the Appellant improperly charged, in that Appellant was
       incarcerated and unable to leave a secure facility and the



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       At the outset we must determine whether the appeal is properly before

this Court.     A fundamental component of the determination concerning

whether an order is final and appealable relates to its effect on the aggrieved

party. State Farm Fire and Cas. Co. v. Craley. 675 A.2 732 (Pa.Super.

1996) (quoting Maleski v. Mutual Fire Ins., 633 A.2d 1143, 1145 (Pa. 1993)

(“A pivotal consideration in determining whether an order is final and

appealable, is whether the plaintiff aggrieved by it has, for purposes of the

particular action, been put ‘out of court’ on all theories of recovery asserted

against a given defendant for a given loss.”)). In this vein, Pennsylvania Rule


____________________________________________


       Appellant had a witness and camera footage that clearly show that
       Appellant could not have made that threat at that time?

       5) Was Appellant entitled to time credit from the date of arrest
       (while incarcerated) of 11-13-13 to 11-30-15, after the dismissal
       of previously charged offense?

       6) Was counsel ineffective for not requesting that all these related
       offense[s] merge (which occurred while the Appellant was
       incarcerated), which were consolidated, and not merged for
       sentencing purposes, all other related offenses were sentenced
       consecutive?

       7) Was it possible for Appellant to tamper with the public water
       system while Appellant was in fact incarcerated?

Appellant’s brief at 2-3. Unfortunately for Appellant, these claims are not
currently before this Court. Instantly, the only issue before us relates to the
January 2018 order granting Appellant’s request to withdraw the PCRA
petition. To the extent that Appellant regrets his decision and desires to
pursue post-conviction collateral relief, his course is to file a PCRA petition
that is subject to the statutory timeliness requirements. We will not address
the merits of his substantive complaints at this juncture.


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of Appellate Procedure 501 provides, “Except where the right of appeal is

enlarged by statute, any party who is aggrieved by an appealable order, or a

fiduciary whose estate of trust is so aggrieved, may appeal therefrom.”

Pa.R.A.P. 501.

         An aggrieved party is one who “[has] been adversely affected by the

decision from which the appeal is taken.” Green v SEPTA, 551 A.2d 578,

579 (Pa.Super. 1998); see also Commonwealth v. Fitzpatrick, 159 A.3d

562, 572 (Pa.Super. 2017). In contrast, a prevailing party is not aggrieved

insofar as there is no adverse action from which to invoke appellate relief.

Commonwealth v. Dellisanti, 831 A.2d 1159 (Pa.Super. 2003) (en banc),

rev’d on other grounds, 876 A.2d 366 (Pa. 2005). Thus, a prevailing party

“does not have standing to appeal an order that has been entered in his or

her favor.” Green, supra at 579.

         In Fitzpatrick, supra, this Court quashed a defendant’s cross-appeal

from an order granting judgment of acquittal because he was not an aggrieved

party.     A jury convicted Fitzpatrick of first-degree murder, and the court

imposed      life   imprisonment.   Fitzpatrick   filed   post-sentence   motions

challenging the weight and sufficiency of the evidence.            Following the

submission of briefs and oral argument, the trial court granted the motion in

part. As the Fitzpatrick Court explained, “Specifically, the trial court denied

[Fitzpatrick’s] request for a new trial, but granted [his] motion for judgment

of acquittal based on the Commonwealth’s failure to present sufficient


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evidence to sustain a first-degree murder conviction.”       Id. at 566.    The

Commonwealth appealed, and Fitzpatrick filed a cross-appeal.

      In quashing Fitzpatrick’s cross-appeal, this Court invoked the above-

referenced legal principles and concluded that, since Fitzpatrick prevailed

below, he was not an aggrieved party.        Specifically, we reasoned, “even

though the trial court did not grant [Fitzpatrick’s] request for a new trial, we

fail to see how [he] was aggrieved by the order granting his request for

judgment of acquittal so as to endow him with standing to file the instant

cross-appeal.” Id. at 572.

      Similar to the status of the cross-appellant in Fitzpatrick, Appellant

was not adversely affected by the order from which the instant appeal was

taken. As discussed supra, the PCRA court granted Appellant’s entreaty to

discontinue the PCRA proceedings and it stayed the repayment of restitution

pending Appellant’s release from incarceration. Since the PCRA court granted

Appellant’s specific requests for relief, Appellant is not an aggrieved party,

and the instant appeal is improper.     Fitzpatrick, supra, (noting “only an

aggrieved party can appeal from an order entered by the lower court.”).

      Appeal quashed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2018




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