J-A01026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    DANTE OVERBY,

                             Appellant                 No. 1705 EDA 2017


                   Appeal from the PCRA Order April 27, 2017
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0604691-2006


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED FEBRUARY 23, 2018

        Appellant, Dante Overby, appeals from the order granting his first

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

§§ 9541-9546.1 We quash.

        We take the following factual and procedural history from our

independent review of the certified record and this Court’s December 22, 2009

decision on direct appeal.

               [Appellant] was arrested on April 22, 2006 as a result of
        events occurring at the Cognac Corner Bar at 21st and Reed Street
        in Philadelphia. [Appellant] fired gunshots through the door of the
        bar, [wounding two individuals]. Trial was scheduled to begin on
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*   Retired Senior Judge assigned to the Superior Court.

1The Commonwealth also has appealed from the PCRA court’s order, at docket
number 1532 EDA 2017.
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       March 5, 2007, but on that date [Appellant] instead plead[ed]
       guilty to the above-described charges in exchange for the
       Commonwealth’s agreement to drop others[, and not to argue
       that Appellant waived his Rule 600 issue by pleading guilty].
       [Appellant] was sentenced to six and one half to thirteen years of
       imprisonment. Trial counsel was permitted to withdraw and new
       counsel was appointed on June 4, 2007.

(Commonwealth v. Overby, No. 832 EDA 2007, unpublished memorandum,

at *1-2 (Pa. Super. filed Dec. 22, 2009)).

       On December 22, 2009, this Court affirmed Appellant’s judgment of

sentence and granted appointed appellate counsel’s petition to withdraw.

(See id. at *1).      On November 9, 2010, the Pennsylvania Supreme Court

denied further review, and the United States Supreme Court denied certiorari

on April 25, 2011. (See Commonwealth v. Overby, 12 A.3d 751 (Pa. 2010),

cert. denied, 563 U.S. 966 (2011)).

       On November 21, 2011, Appellant filed a pro se first PCRA petition.

After the PCRA court appointed counsel, Appellant moved to proceed pro se

on July 23, 2012. The court held a Grazier2 hearing on August 13, 2015, and

granted Appellant’s request. Appellant filed a pro se amended PCRA petition

on October 9, 2015.             In his petitions, Appellant claimed that the

Commonwealth violated Rule 600, and that his guilty plea was involuntary

where plea counsel rendered ineffective assistance by misrepresenting that he



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2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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would be able to raise his Rule 600 claim on appeal, even if he pleaded guilty.3

(See PCRA Petition, 11/21/11, at 3-4, 8; Amendment to PCRA Petition,

10/09/15, at unnumbered page 6).

       On April 27, 2017, the PCRA court granted Appellant’s petition in an

order and memorandum opinion, and allowed him to withdraw his guilty plea.

The court found that counsel was ineffective because he had no reasonable

basis for advising Appellant that he would be able to raise the Rule 600 issue

on direct appeal despite pleading guilty.4 (See PCRA Court Opinion, 4/27/17,

at 8). Appellant timely appealed on May 10, 2017.5 He filed a timely court-




____________________________________________


3 Appellant also claimed that the prosecutor and the trial court made the same
misrepresentation.     (See Amendment to PCRA Petition, 10/09/15, at
unnumbered page 3). In addition, he raised an Alleyne claim, but withdrew
it during oral argument. See Alleyne v. United States, 133 S. Ct. 2151
(2013); (Amendment to PCRA Petition, at unnumbered pages 9-10; N.T.
Hearing, 3/27/17, at 10).

4 In the Commonwealth’s appeal of the order, we reversed the PCRA court and
ordered reinstatement of Appellant’s guilty plea. We concluded he did not
suffer any prejudice on the basis of counsel’s advice where, on direct appeal,
this Court had previously addressed Appellant’s Rule 600 issue substantively
and expressly concluded that it is “wholly without merit.” (Commonwealth
v. Overby, No. 832 EDA 2007, unpublished memorandum, at *5 (Pa. Super.
filed Dec. 22, 2009)).

5 On May 22, 2017, after filing his notice of appeal, Appellant filed a pro se
motion to preclude retrial based on double jeopardy. The trial court denied
the motion in an order dated June 2, 2017, and time-stamped June 6, 2017.
Any attempt by Appellant to incorporate this order into the current appeal is
not proper. (See Appellant’s Brief, at 6, 8 ¶ 3). Moreover, any double
jeopardy claim is moot where, as stated above, we ordered reinstatement of
Appellant’s guilty plea.

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ordered statement of errors complained of on appeal on June 7, 2017. See

Pa.R.A.P. 1925(b). The court did not file an opinion. See Pa.R.A.P. 1925(a).

      Appellant maintains, in pertinent part, that the PCRA court should have

granted his petition on different grounds. (See Appellant’s Brief, at 8 ¶¶ 1-

2). Before we consider the merits of Appellant’s appeal, we must consider

whether it is properly before us.

      It is well-settled that:

            [O]nly an aggrieved party can appeal from an order entered
      by the lower court. [See] Pa.R.A.P. 501; see also Green by
      Green v. SEPTA, 380 Pa. Super. 268, 551 A.2d 578, 579 (Pa.
      Super. 1988) (citations omitted) (“To be ‘aggrieved’ a party must
      have been adversely affected by the decision from which the
      appeal is to be taken. Generally, a prevailing party is not
      ‘aggrieved,’ and, therefore, does not have standing to appeal an
      order which has been entered in his or her favor.”)

Commonwealth v. Fitzpatrick, 159 A.3d 562, 571 (Pa. Super. 2017),

appeal denied, 173 A.3d 255 (Pa. 2017) (most case citations omitted).

Further, “a prevailing party’s disagreement with the legal reasoning or basis

for a decision does not amount to such a cognizable aggrievement as is

necessary to establish standing.” Id. (citation omitted).

      In this case, as stated previously, the PCRA court granted Appellant’s

petition and found plea counsel ineffective, which resulted in the grant of

Appellant’s motion to withdraw his guilty plea.    Merely because Appellant

argues that the PCRA court should have granted his petition on a different

basis does not render Appellant an aggrieved party.         See id.   Therefore,




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J-A01026-18


Appellant lacks standing to appeal the PCRA court’s order and we quash his

appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/18




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