J-S69029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FREDERICK ELLIS                            :
                                               :
                       Appellant               :   No. 2923 EDA 2018


           Appeal from the PCRA Order Entered September 17, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0004869-2017.


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 04, 2020

        Frederick Ellis appeals pro se from the order granting his petition for

post-conviction relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

42 Pa.C.S.A. §§ 9541-46. Ellis contends that the PCRA court should have

granted him further relief in the form of “rescinding” the entry of his guilty

plea. Because this appeal is procedurally defective, we quash.

        The PCRA court summarized the pertinent facts as follows:

              On April 15, 2017, the complainant returned to his home
           and found his apartment ransacked with a significant
           amount of his property missing, including an assault rifle,
           two handguns, electronics and jewelry. He later was shown
           a video taken from a neighbor’s camera which showed [Ellis]
           go in the property with others and leave with a full duffel
           bag. A search warrant was executed on [Ellis’] home and
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S69029-19


           all of the firearms and most of the complainant’s other
           property was recovered. [Ellis] was home at the time and
           was arrested. Police recovered his cell phone which had
           further evidence tying him [to] the crime. [Ellis] had
           previously been convicted of Robbery and therefore was
           unable to possess a firearm.


PCRA Court Opinion, 4/22/19, at 2-3.

       The PCRA court also summarized the pertinent procedural history as

follows:

               On August 14, 2017, [Ellis] pled guilty to Burglary (F1),
           Conspiracy (F1), and to a Violation of the Uniform Firearms
           Act 6015 (F2). He was sentenced to a negotiated term of
           forty-eight to one hundred twenty months in State Prison.
           The written plea documents as well as the notes of
           testimony clearly reflect that [Ellis] was pleading guilty to
           F1 Burglary where no one was present. Through a clerical
           error, the clerk drafted a sentencing order reflecting that
           [Ellis] pled guilty to F1 Burglary- Person Present. On March
           23, 2018, [Ellis] filed a Pro Se [PCRA petition] alleging that
           he was convicted under the wrong subsection of Burglary
           (18 Pa.C.S.A. §3502(a)(1)(i)), which is a violent crime,
           whereas the facts support a conviction under § 3502(a)(2).
           On June 7, 2018, [PCRA] counsel filed an amended PCRA
           petition.    The Relied Requested was “that [Ellis] be
           resentenced under the correct section of the charge of
           Burglary to which [Ellis] pled to.” On September 17, 2018,
           this Court granted [Ellis’] PCRA petition and ordered that the
           charge of Burglary reflect §3502(a)(2).

PCRA Court Opinion, 4/22/19, at 1-2 (citation omitted). This pro se appeal

followed.1 Both Ellis and the PCRA court have complied with Pa.R.A.P. 1925.

       Ellis now raises the following three issues:


____________________________________________


1 Following a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998), the PCRA court permitted Ellis to proceed pro se.

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         1. Did the PCRA court [err] by denying [Ellis] his due
            process rights under the 6th and 14th Amendment[s] of
            the United States Constitution by not affording [Ellis] the
            right to rescind his guilty plea when it was determined
            that the statute did not apply to [Ellis]?

         2. Did the PCRA court abuse its discretion by changing the
            statute   and    denying     re-sentencing   when      the
            Commonwealth agreed with [Ellis’] petition that all of the
            elements [were] not met to sustain a conviction under
            the statute that was [pled] to?

         3. [Ellis] is actually and factually innocent of burglary, and
            by PCRA [counsel’s] ineffectiveness by not raising pre-
            trial [counsel’s] ineffectiveness for failing to investigate
            the case properly and informing [Ellis] of the charges
            against him resulting in coercion of a guilty plea which
            [Ellis] would not have done but for [counsel’s]
            ineffectiveness?

Ellis’ Brief at 4 (excess capitalization omitted).

      This 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.       Commonwealth v.

Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

      Before addressing the merits of Ellis’ issues, we must first determine

whether his appeal is properly before us. We conclude that it is not.

      A fundamental component of the determination concerning whether an

appeal is final and appealable relates to its effect on the aggrieved party.

Commonwealth v. Polo, 759 A.2d 372 (Pa. 2000).                Rule of Appellate

Procedure 501 provides: “Except where the right to of appeal is enlarged by

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

whose estate or trust is go aggrieved, may appeal therefrom.” Pa.R.A.P. 501

(emphasis added).

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

decision from which the appeal is taken.” Polo, 759 a.2d at 373 n.1. By

contrast, a prevailing party is not aggrieved insofar as there is no adverse

action from which to invoke appellate relief. Commonwealth v. Dellissanti,

831 A.2d 1159, 1163 n.7 (Pa. Super. 2003) (en banc), reversed 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.” Polo,

759 A.2d at 373 n.1.

      In Commonwealth v. Fitzpatrick, 159 A.3d 562 (Pa. Super. 2017),

this Court quashed a defendant’s cross-appeal from an order granting his

motion for judgment of acquittal because he was not an aggrieved party. In

that case, 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 supporting his

conviction, as well as a claim regarding the admission of certain evidence.

Following the submission of briefs and oral argument, the trial court granted

the motion in part. As we explained in Fitzpatrick, “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 evidence to sustain a first-degree murder conviction.” Fitzpatrick,

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159 A.3d at 566. Thereafter, the Commonwealth filed a timely appeal, and

Fitzpatrick filed a cross-appeal.

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

referenced legal principles and concluded that, because Fitzpatrick prevailed

below, he was not an aggrieved party. 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.”

Fitzpatrick, 159 A.3d at 572.

      Here, similar to the status as the cross-appellant in Fitzpatrick, Ellis

was not adversely affected by the order from which this appeal is taken, as

Ellis received precisely the relief he requested—the PCRA court amended his

sentencing order to reflect the proper section of the burglary statute to which

he pled guilty. Thus, because the PCRA court granted Ellis’ specific request

for relief, Ellis is not an aggrieved party, and the instant appeal is improper.

      In   his   reply   brief,   Ellis   cites   this   Court’s   recent   decision   in

Commonwealth v. Shaw, 214 A.3d 283 (Pa. Super. 2019), to support his

position that, on appeal, he can raise a layered claim of PCRA counsel’s

ineffectiveness for failing to raise the additional claims he raised in his pro se

PCRA petition regarding trial counsel’s alleged ineffectiveness.              Shaw is

readily distinguishable. In Shaw, this Court concluded that Shaw’s claim of

PCRA counsel’s ineffectiveness was not waived on appeal because PCRA

counsel “abandoned the only claim [Shaw] had presented at the PCRA

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hearing” by failing to include it in Shaw’s Rule 1925(b) statement. Shaw 214

A.3d at 292-93. Here, by contrast, except for Ellis’ request for resentencing,

Ellis’ other claims were never raised before the PCRA court. Thus, Ellis cannot

raise his claim of PCRA counsel ineffectiveness for the first time on appeal.

See generally, Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc).

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/20




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