Commonwealth v. Queer

Full title: COMMONWEALTH OF PENNSYLVANIA v. DONALD W. QUEER, Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Jul 10, 2015

J. S09007/15 (Pa. Super. Ct. Jul. 10, 2015)

Opinion

J. S09007/15 No. 376 WDA 2014 No. 377 WDA 2014 No. 378 WDA 2014

07-10-2015

COMMONWEALTH OF PENNSYLVANIA v. DONALD W. QUEER, Appellant

MEMORANDUM BY FORD ELLIOTT, P.J.E.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence, September 12, 2001, in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-CR-0000294-2000
Appeal from the Judgment of Sentence, September 12, 2001, in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-CR-0000293-2000
Appeal from the Judgment of Sentence, September 12, 2001, in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-CR-0000292-2000
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:

Appellant appeals from the judgment of sentence entered September 12, 2009, following appellant's various convictions related to three separate arsons. Finding no merit in the issues on appeal, we affirm.

This court previously recounted the procedural history of this case during appellant's appeal of the order dismissing appellant's fourth petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 to 9546:

The procedural history of this case is as follows. On June 7, 2001, a jury found Appellant guilty of numerous counts of arson and related offenses. On September 12, 2001, Appellant was sentenced to an aggregate term of no less than 29 and 1/3 nor more than 58 and 2/3 years' imprisonment at a state correctional institution. Appellant's post-sentence motions were denied on January 14, 2002, and no direct appeal was filed. On July 2, 2002, Appellant filed his first post-conviction petition, which was denied on February 24, 2003. This Court affirmed that order on April 7, 2004. On August 13, 2004, Appellant filed his second PCRA petition. The PCRA court dismissed this second petition as untimely in an order entered on March 22, 2005, and Appellant did not appeal this order. On April 11, 2005, Appellant filed his third PCRA petition in which he requested, for the first time, reinstatement of his direct appeal rights. The PCRA court reinstated Appellant's direct appeal rights on August 3, 2005. This Court quashed Appellant's appeal nunc pro tunc from the judgment of sentence on May 17, 2006, holding that
the PCRA court did not have jurisdiction to order the reinstatement of direct appeal rights. Our Supreme Court denied Appellant's petition for allowance of appeal on September 29, 2006.

Appellant filed the instant PCRA petition, his fourth, on November 8, 2006. The PCRA court dismissed the petition on December 12, 2006.

Commonwealth v. Queer , Nos. 147, 148, and 149 WDA 2007, unpublished memorandum at 2-3 (Pa.Super. filed December 12, 2007).

This court went on to affirm the dismissal of his fourth PCRA petition on the basis of untimeliness. Thereafter, appellant turned to the United States District Court for the Western District of Pennsylvania for relief, filing a petition for writ of habeas corpus on April 1, 2008. Ultimately, the federal court granted relief, ordering the District Attorney of Westmoreland County to petition the appropriate court to reinstate appellant's direct appeal rights. This timely appeal ensued.

Appellant raises the following issues on appeal:

I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE VERDICTS AT ALL THREE CASES?

II. WHETHER DEFENDANT SHOULD BE GRANTED A NEW TRIAL BASED UPON TRIAL COUNSEL'S FAILURE TO REQUEST AN ALIBI INSTRUCTION ON ALL CASES?

Appellant's brief at 6.

Preliminarily, we note that we cannot review appellant's second issue, pertaining to an allegation of ineffective assistance of counsel, on direct appeal. It is well-settled that such claims must await collateral review. Commonwealth v. Holmes , 79 A.3d 562, 563 (Pa. 2013). Consequently, we will not review appellant's second issue.

As for appellant's first issue, pertaining to the sufficiency of the evidence as to his various convictions, we find no error with the trial court's holding. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our determination that there is no merit to the question raised on appeal. Judge John E. Blahovec's meticulous, 15-page opinion, filed on January 14, 2002, comprehensively discusses and properly disposes of the sufficiency of the evidence question presented. We will adopt it as our own and affirm on that basis.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015

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