Com. v. Queer, D.

J-A20040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD W. QUEER :
:
Appellant : No. 1571 WDA 2019
Appeal from the PCRA Order Entered September 20, 2019
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000292-2000
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD W. QUEER :
:
Appellant : No. 1572 WDA 2019
Appeal from the PCRA Order Entered September 20, 2019
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000294-2000
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD W. QUEER :
:
Appellant : No. 1573 WDA 2019
Appeal from the PCRA Order Entered September 20, 2019
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000293-2000
J-A20040-20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD W. QUEER :
:
Appellant : No. 1574 WDA 2019
Appeal from the PCRA Order Entered September 20, 2019
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000292-2000
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD W. QUEER :
:
Appellant : No. 1575 WDA 2019
Appeal from the PCRA Order Entered September 20, 2019
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000294-2000
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD W QUEER :
:
Appellant : No. 1576 WDA 2019
Appeal from the PCRA Order Entered September 20, 2019
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000293-2000
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2020
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In these consolidated appeals, Donald W. Queer (“Queer”) appeals from
the Order dismissing his Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”).1 We dismiss the appeals docketed at 1574 WDA 2019,
1575 WDA 2019, and 1576 WDA 2019, and affirm the PCRA court’s Order as
to the remaining dockets.
In October of 1999, Queer was arrested and charged with arson2 and
related offenses in relation to a series of three building fires that occurred
earlier that year. The first fire occurred at the Piper family’s house (the “Piper
Fire”) in Cook Township, Latrobe, Pennsylvania. The second fire occurred at
the Auto Haven, Inc. (the “Auto Haven Fire”), on State Route 30 in Derry
Township, Westmoreland County, Pennsylvania. The third fire occurred at the
Loveridge family’s mobile home (the “Loveridge Fire”) in Derry Township,
Westmoreland County, Pennsylvania.
At Docket No. CP-65-CR-0000292-2000 (“No. 292-2000”), Queer was
charged in connection with the Piper Fire. At Docket No. CP-65-CR-0000293-
2000 (“No. 293-2000”), Queer was charged in connection with the Auto Haven
Fire. At Docket No. CP-65-CR-0000294-2000 (“No. 294-2000”), Queer was
charged in connection with the Loveridge Fire.
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1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. §§ 3301(a)(1)(i), (ii), (c)(2), (d)(1), (d)(2).
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This Court previously summarized the relevant procedural history as
follows:
On June 7, 2001, a jury found [Queer] guilty of numerous
counts of arson and related offenses. On September 12, 2001,
[Queer] was sentenced to an aggregate term of no less than 29
and 1/3 nor more than 58 and 2/3 years[ in prison. Queer]’s post-
sentence [M]otions were denied on January 14, 2002, and no
direct appeal was filed. On July 2, 2002, [Queer] filed his first
PCRA [P]etition, which was denied on February 24, 2003. This
Court affirmed that [O]rder on April 7, 2004. On August 13, 2004,
[Queer] filed his second PCRA [P]etition. The PCRA court
dismissed []his second [P]etition as untimely [and Queer] did not
appeal[.] On April 11, 2005, [Queer] filed his third PCRA [P]etition
in which he requested, for the first time, reinstatement of his
direct appeal rights. The PCRA court reinstated [Queer]’s direct
appeal rights on August 3, 2005. This Court quashed [Queer]’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 [Queer]’s [P]etition for allowance of appeal on
September 29, 2006.
[Queer] filed [his] fourth PCRA [P]etition[] on November 8,
2006. The PCRA court dismissed the [P]etition[, and this Court
affirmed]. Thereafter, [Queer] turned to the United States District
Court for the Western District of Pennsylvania for relief, [where
he] file[d] a [P]etition for [W]rit of [H]abeas [C]orpus[.]
Ultimately, the federal court granted relief, [and] order[ed] the
District Attorney of Westmoreland County to petition the
appropriate court to reinstate [Queer]’s direct appeal rights.
Commonwealth v. Queer, 125 A.3d 446 (Pa. Super. 2015) (unpublished
memorandum at 2-3). Upon the reinstatement of Queer’s direct appeal rights,
Queer filed a direct appeal and this Court affirmed his judgment of sentence.
See id.-4-
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On September 15, 2015, Queer, pro se, filed the instant PCRA Petition,
his fifth.3, 4 In his Petition, Queer raised 22 claims alleging that his trial
counsel rendered ineffective assistance of counsel for his failures to file a
suppression motion, conduct pre-trial investigation, effectively cross-examine
Commonwealth witnesses, challenge the legality of Queer’s arrest, request
various jury instructions, be familiar with the cases and be prepared for trial,
to object to various “inadmissible” statements, and object to prosecutorial
misconduct. Additionally, Queer claimed that he was entitled to a new trial
because documentation would prove that he did not purchase the Subaru from
Auto Haven, Inc., and, thus, that Queer had no motive for starting the Auto
Haven Fire.5 Queer further claimed that he was entitled to a new trial based
upon cumulative error.
On January 29, 2019, the PCRA court conducted an evidentiary hearing.
At the conclusion of the hearing, the PCRA court ordered supplemental briefs
____________________________________________
3We note that the docket refers to Queer’s PCRA Petition as a pro se Post
Sentence Motion; however, the filing is titled “Post Conviction Relief Act
Petition,” and the PCRA court treated the filing as a PCRA Petition.
4 After multiple postponements and changing of counsel, Queer filed a
counseled PCRA Petition, which he ultimately withdrew after a hearing, and
proceeded, with standby counsel, on his initially-filed pro se PCRA Petition.
5 At trial, the Commonwealth’s theory of Queer’s motive for the Auto Haven
Fire was based upon testimony that Queer was unhappy with Auto Haven, Inc.
for selling a white Subaru that did not work properly. See N.T. (Jury Trial
Transcript), 5/29/01, at 604-06, 716-17, 1253.
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on the issues, and both parties complied. On September 20, 2019, the PCRA
court issued its Order and Opinion denying Queer’s Petition.6
On September 30, 2019, Queer filed a timely Notice of Appeal that
included all three of his trial court docket numbers. Queer’s Notice of Appeal
was docketed at 1488 WDA 2019. Subsequently, on October 14, 2019, Queer
filed an additional six timely Notices of Appeal, two Notices of Appeal per
docket number. At No. 292-2000, this Court docketed Queer’s two October
14, 2019, Notices of Appeal as 1571 WDA 2019 and 1574 WDA 2019. At No.
293-2000, this Court docketed Queer’s two October 14, 2019, Notices of
Appeal as 1573 WDA 2019 and 1576 WDA 2019. At No. 294-2000, this Court
docketed Queer’s two October 14, 2019, Notices of Appeal as 1572 WDA 2019
and 1575 WDA 2019.
On October 22, 2019, this Court issued a Rule to Show Cause why
Queer’s appeal at 1488 WDA 2019 should not be quashed pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).7
On October 30, 2019, Queer filed a Response and conceded that his
appeal docketed at 1488 WDA 2019 was defective in light of Walker, and that
____________________________________________
6We note that the PCRA court’s Order and Opinion is dated September 19,
2019; however, the Order and Opinion was docketed on September 20, 2019.
7 In Walker, our Supreme Court stated that “when a single order resolves
issues arising on more than one lower court docket, separate notices of appeal
must be filed [and t]he failure to do so will result in quashal of the appeal.”
Walker, 185 A.3d at 977 (citing Pa.R.A.P. 341).
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he had filed the above-captioned appeals in an attempt to correct that defect.
Further, Queer asserted that the above-captioned appeals were timely filed
before the 30-day appeal deadline.
On November 6, 2019, this Court, sua sponte, consolidated Queer’s
appeal docketed at 1488 WDA 2019 with the above-captioned appeals. In the
same Order, this Court issued a Rule to Show Cause as to why the above-
captioned appeals should not be dismissed as duplicative of his appeal at 1488
WDA 2019.
On December 4, 2019, this Court, sua sponte, quashed Queer’s appeal
at 1488 WDA 2019 for failure to comply with the mandates of Walker and
Pa.R.A.P. 341(a). In the same Order, this Court unconsolidated 1488 WDA
2019 from the above-captioned appeals. Additionally, this Court directed that
the above-captioned appeals remain consolidated and be referred to the
merits panel.
Queer now presents the following claims for our review:
1. Whether [Queer] is entitled to a new trial[,] as he is presenting
a claim of after discovered exculpatory evidence that would have
changed the outcome of this case had it been available at trial?
2. Whether [Queer] is entitled to a new trial[,] as his trial counsel
rendered ineffective assistance of counsel that so undermined the
truth determining process that no reliable adjudication of guilt or
innocence could have taken place?
Brief for Appellant at 4.
At the outset, we address the procedural posture of these duplicative
appeals. First, Queer failed to comply with the dictates of Walker in his
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appeal at 1488 WDA 2019, and, consequently, this Court quashed that appeal.
Additionally, on October 14, 2019, Queer filed the above-captioned appeals in
an attempt to correct the Walker defect at 1488 WDA 2019. Because Queer
has improperly filed two Notices of Appeal at each docket number, we dismiss
Queer’s appeals at 1574 WDA 2019, 1575 WDA 2019, and 1576 WDA 2019
as duplicative.8 See Neidert v. Charlie, 143 A.3d 384, 387 n.3 (Pa. Super.
2016) (stating that this Court may summarily dismiss duplicative appeals).
We now turn to the claims raised by Queer in his remaining appeals
docketed at 1571 WDA 2019, 1572 WDA 2019, and 1573 WDA 2019. Initially,
we observe that Queer has raised two claims in the Statement of Questions
Involved section of his appellate brief; however, Queer raises 19 separate
claims in the summary of argument section of his appellate brief. See Brief
for Appellant at 7-8.
The 19 claims in the summary of argument section of his brief are as
follows:
1. Trial [c]ounsel was ineffective by failing to investigate[] the
motive [Queer] allegedly had for wanting [the Piper Fire] set.
2. Trial counsel was ineffective by failing to object to [the]
Comm[onwealth’s] introduction of alternative hearsay motive.
____________________________________________
8 We observe that Queer has filed identical briefs at each of the above-
captioned appeals and, thus, Queer has not been prejudiced by this Court’s
dismissal of his appeals at 1574 WDA 2019, 1575 WDA 2019, and 1576 WDA
2019.
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3. Trial counsel was ineffective by failing to file [a] pre-trial
suppression motion to challenge [the] legality of [Queer’s] arrest
warrants.
4. Trial counsel was ineffective by failing to cross[-]examine
Comm[onwealth] witness [Connie] Knauer [(“Knauer”)] who
falsely place[d Queer] at th[e] crime scene.
5. Trial counsel [was] ineffective by failing to request the court
[to] give [the] jury a no adverse inference and an alibi instruction.
6. Trial counsel was ineffective by failing to request court [sic]
give the jury a [g]uilt [b]y [a]ssociation [c]harge.
7. Trial counsel [was] ineffective by failing to properly [and]
adequately cross[-]examine Comm[onwealth] witness Don
Phillips as to who helped him [sic] set th[e Piper Fire] and other
issues dealing with his credibility.
***
8. Trial counsel [was] ineffective by failing to object to
prosecut[orial] misconduct during his closing arguments.
9. [Queer is] entitled to a new trial as [Queer] is presenting a
claim of [a]fter[-d]iscovered [e]xculpatory [e]vidence.
10. Trial counsel [was] ineffective two[-]fold by failing to have
Comm[onwealth] witness [John] Regelman [(“Regelman”)]
provide testimony that [co-defendant David] Ferguson
[(“Ferguson”)] made a confession to [Regelman] that indicates
[Queer was] not responsible for th[e Auto Haven Fire].
11. Trial counsel [was] ineffective by failing to object to
inadmissible hearsay testimony offered for the truth.
12. Trial counsel [was] ineffective by arguing facts in his closing
without first having a witness testify to th[ose] fact[s].
13. Trial counsel [was] ineffective by failing to cross[-]examine
[Knauer] on different motives [Queer] allegedly had.
***
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14. Trial counsel [was] ineffective by failing to file [a] suppression
motion to challenge [the] legality of [Queer’s] arrest.
15. Trial counsel [was] ineffective by failing to have [Regelman]
provide testimony that Ferguson had a friend help [Ferguson] set
th[e Loveridge Fire], and counsel [was] also ineffective by failing
to cross[-]examine [Knauer] as to who the friend was and why
she[ was] covering up for him.
16. Trial counsel [was] ineffective by arguing facts in his closing
and not having Comm[onwealth] witness Shawn Sprock
[(“Sprock”)] first testify to those facts.
17. Trial counsel [was] ineffective by arguing facts in closing
arguments without first having the fire victim testify to those
facts.
18. Trial counsel [was] ineffective by failing to object to the motive
charge the court gave the jury.
19. Trial counsel[’]s cumulative errors resulted in [Queer] being
denied a fair trial and resulted in the conviction of an innocent
person.
Id.As this Court has explained,
[o]ur standard of review of an order [dismissing a] PCRA
[petition] is whether the record supports the PCRA court’s
determination and whether the PCRA court’s determination is free
of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (internal
citations omitted).
In his first claim, Queer contends that he is entitled to a new trial based
on after-discovered evidence showing that his father, Edward Jackson
(“Jackson”), not Queer, purchased the white Subaru from Auto Haven, Inc.
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Brief for Appellant at 35. Specifically, Queer claims that the Proof of Insurance
and the Temporary Owner’s Card show that Jackson purchased the Subaru
from Auto Haven, Inc. on May 5, 1998. Id. Queer argues that these
documents could not have been obtained by the exercise of reasonable
diligence, because Jackson had misplaced the documents. Id. Queer
concedes that he, Jackson, and Donald Clark (“Clark”) all testified at trial that
Jackson had purchased the Subaru from Auto Haven, Inc. Id. at 36-37.
However, Queer asserts that these documents are not cumulative because
there was conflicting testimony about whether Queer or Jackson owned the
Subaru. Id. at 35-36. Further, Queer claims that these documents would
establish that Queer had no motive for burning down Auto Haven, Inc.,
because the car was not his. Id. at 36-38.
To be entitled to relief under the PCRA for an after-discovered evidence
claim, a PCRA petitioner “must plead and prove by a preponderance of the
evidence [that] ‘[t]he unavailability at the time of trial of exculpatory evidence
that has subsequently become available and would have changed the outcome
of the trial if it had been introduced.’” Commonwealth v. Foreman, 55 A.3d
532, 537 (Pa. Super. 2012) (citing 42 Pa.C.S.A. § 9543(a)(2)(vi)).
To obtain relief based on after-discovered evidence, [an] appellant
must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted.
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Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citations omitted).
“As this test is conjunctive, failure to establish one prong obviates the need
to analyze the remaining ones.” Commonwealth v. Solano, 129 A.3d 1156,
1180 (Pa. 2015) (citation omitted). The after-discovered evidence must be
producible and admissible. See Commonwealth v. Small, 189 A.3d 961,
972 (Pa. 2018). Further, when reviewing the decision to grant or deny a new
trial on the basis of after-discovered evidence, an appellate court is to
determine whether the PCRA court committed an abuse of discretion or error
of law that controlled the outcome of the case. Commonwealth v. Reese,
663 A.2d 206, 209 (Pa. Super. 1995).
Additionally, after-discovered evidence is “merely corroborative or
cumulative … if it is of the same character and to the same material point as
evidence already adduced at trial.” Small, 189 A.3d at 974. Notwithstanding,
after-discovered evidence supports the grant of a new trial when it “is of a
different and ‘higher’ grade or character, though upon the same point, or of
the same grade or character on a different point[.]” Id.
Instantly, the Commonwealth presented the testimony of Knauer and
Sprock, both of whom testified that Queer paid for the Auto Haven Fire to be
set. N.T. (Jury Trial Transcript), 5/29/01, at 604-05, 716. Additionally,
Knauer and Sprock testified that Queer was upset with Auto Haven, Inc.
because the Subaru was not working properly. Id. Queer presented
testimony from himself, Jackson, and Clark, each of whom testified that
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Jackson had purchased the Subaru from Auto Haven, Inc. Id. at 967, 1066,
1075-76. Additionally, Queer and Jackson both testified that Jackson had
purchased the Subaru as a graduation present for his grandson, Clark. Id. at
948.
In its Order and Opinion, the PCRA court concluded that Queer had failed
to demonstrate that the Temporary Owner’s Card and Proof of Insurance were
not merely cumulative of the evidence produced at trial. See PCRA Court
Order and Opinion, 9/19/19, at 5. Our review of the record confirms the PCRA
court’s determination that the Temporary Owner’s Card and Proof of Insurance
were merely cumulative of the evidence presented at trial. See N.T. (Jury
Trial Transcript), 5/29/01, at 967, 1066, 1075-76 (wherein Queer, Jackson,
and Clark testified that Jackson, not Queer, had purchased the Subaru); see
also Solano, supra; Phillips, supra.Additionally, we observe that the record is devoid of any reference to
Queer purchasing the Subaru, and the testimony that Jackson purchased the
Subaru was entirely uncontested.9 Moreover, the record reveals that the
____________________________________________
9 We note that Queer highlights specific portions of the Notes of Testimony,
where he claims that the Commonwealth presented evidence that Queer had
purchased the Subaru. However, our review of those portions of the record
reveals no support for Queer’s contention. See N.T. (Jury Trial Transcript),
5/29/01, at 29-30 (wherein the District Attorney, outside the presence of the
jury, stated that Sprock may testify that Queer was in possession of the
Subaru); see also id. at 514-15 (wherein Queer’s trial counsel objected to
testimony about who owned the Subaru, and the trial court sustained the
objection); id. at 604-05, 716 (wherein Sprock and Knauer testified that
Queer had paid for the Auto Haven Fire to be set).
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Commonwealth’s theory as to Queer’s motive was not whether Jackson or
Queer had purchased the Subaru, but whether Queer was upset about Auto
Haven, Inc., selling a defunct vehicle to his family. See N.T. (Jury Trial
Transcript), 5/29/01, at 604-06, 716-17, 1253. Accordingly, we cannot grant
Queer relief on this claim.
In his next 17 claims, Queer challenges the effectiveness of his trial
counsel. Generally, counsel is presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [the] appellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To prevail on a claim of
ineffective assistance of counsel, an appellant must establish the following
three factors: “[F]irst [that] the underlying claim has arguable merit; second,
that counsel had no reasonable basis for his action or inaction; and third, that
[a]ppellant was prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012,
1020 (Pa. Super. 2014) (citation omitted). “Failure to satisfy any prong of
the test will result in rejection of the appellant’s ineffective assistance of
counsel claim.” Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super.
2017) (internal citations and quotation marks omitted).
We note at the outset that Queer did not raise his fifth claim, pertaining
to trial counsel’s ineffectiveness for failure to request no adverse inference
and alibi instructions, in his Pa.R.A.P. 1925(b) Concise Statement of errors
complained of on appeal. Further, the PCRA court did not address this claim
in its Opinion. We, therefore, deem that claim to be waived. See
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Commonwealth v. Pantalion, 857 A.2d 1267, 1270 n.6 (Pa. Super. 2008)
(stating that failure to include an issue in a Rule 1925(b) statement waives
that issue for the purposes of appellate review).
Regarding Queer’s remaining ineffectiveness claims, we note that Queer
failed to set forth these claims in his Statement of Questions Involved, as is
required by Pa.R.A.P. 2116(a). See Commonwealth v. Ivy, 146 A.3d 241,
254 (Pa. Super. 2016) (stating that failure to raise an issue in the statement
of questions involved waives the issue on appeal) (citing Pa.R.A.P. 2116(a)).
Thus, we could deem these claims waived. Nevertheless, we have reviewed
these claims and agree with the PCRA court that they lack merit. See PCRA
Court Opinion and Order, 9/19/19, at 1-9; see also Holt, supra.
In his final claim, Queer contends that he is entitled to a new trial based
on the cumulative errors by trial counsel, because all of his issues have
arguable merit. Brief for Appellant at 56. Queer claims that the “numerous
errors by trial counsel” prejudiced him, because they resulted in the jury being
unable to “render a true verdict.” Id. Queers argues that the
Commonwealth’s evidence at trial was not overwhelming and that the trial
counsel errors he outlined constitute cumulative error. Id.
Queer failed to raise this claim in his Statement of Questions Involved
and, consequently, it is waived. See Ivy, supra. Even if Queer had not
waived this claim, he would not be entitled to relief because all of his prior
claims lack merit and, consequently, Queer cannot show that he suffered
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cumulative prejudice from those claims. See Commonwealth v. Bryant,
855 A.2d 726, 751 (Pa. 2004) (stating that “[n]o number of failed claims may
collectively attain merit if they could not do so individually” (brackets and
citation omitted)).
Based upon the foregoing, we dismiss Queer’s appeals docketed at 1574
WDA 2019, 1575 WDA 2019, and 1576 WDA 2019 as duplicative, and we
affirm the PCRA court’s Order at the remaining docket numbers.
Appeals at Docket Numbers 1574 WDA 2019, 1575 WDA 2019, and
1576 WDA 2019 dismissed. PCRA court Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2020
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