J-S34040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GABRIEL ALLEN QUEENER :
:
Appellant : No. 315 WDA 2023
Appeal from the Judgment of Sentence Entered February 21, 2023
In the Court of Common Pleas of Mercer County
Criminal Division at CP-43-CR-0000145-2022
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GABRIEL ALLEN QUEENER :
:
Appellant : No. 316 WDA 2023
Appeal from the Judgment of Sentence Entered February 21, 2023
In the Court of Common Pleas of Mercer County
Criminal Division at CP-43-CR-0000143-2022
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: October 17, 2023
Gabriel Allen Queener (Appellant) appeals from the judgments of
sentence imposed after he pled no-contest to aggravated assault1 at CP-43-
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1 18 Pa.C.S.A. § 2702(a)(1).
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CR-0000143-2022 (No. 143-2022), and intimidation of a witness2 at CP-43-
CR-0000145-2022 (No. 145-2022).3 We affirm.
Appellant was charged with the above crimes in connection with the
shooting of Anthony Ouly (Ouly). On May 10, 2022, Appellant filed an
omnibus pretrial motion at each docket. At No. 143-2022, Appellant
challenged, in part, the validity of a search warrant. He also included a
petition for habeas corpus relief, alleging the Commonwealth had failed to
present evidence establishing the material elements of aggravated assault.
The trial court denied Appellant’s habeas petition. Following a hearing, the
trial court denied the pretrial motions. Appellant subsequently filed a motion
for reconsideration and reasserted his claims that the search warrant was
invalid.
While the motion for reconsideration was pending, Appellant filed a
motion to suppress physical evidence. Appellant claimed he had received
additional evidence from the Commonwealth, i.e., gunshot residue test
results. He argued those test results must be suppressed as the result of an
illegal arrest. The trial court denied Appellant’s motion for reconsideration.
After a hearing on the newly raised suppression issue, the trial court also
denied Appellant’s motion to suppress.
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2 18 Pa.C.S.A. § 4952(a)(5).
3 As Appellant only challenges the aggravated assault charge, we limit our
discussion of the facts and procedural history accordingly.
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Appellant subsequently agreed to enter a no-contest plea. At the plea
hearing, the Commonwealth recited the facts it would establish if the
aggravated assault case at No. 143-2022 had proceeded to trial:
[T]he Commonwealth would call a number of witnesses, including
a number of officers from the Sharon Police Department; the
victim at [No. 143-2022], [] Ouly …, as well as members of the
Pennsylvania State Police Forensic Service Unit. They would
collectively testify that on or about January 1, 2022[,] Sharon
Police units were dispatched to 308 Malleable Street in the City of
Sharon for a gunshot victim. Upon arriving, they observed …
Ouly[] with only one gunshot wound through his right leg. [] Ouly
advised that he was riding through the 200 block of Mesabi Street
on his bicycle when he observed a dark sedan driving toward him
with no headlights. … [A] black male with dreadlocks [] exit[ed]
the car. Mr. Ouly continued on. Several seconds later he []
hear[d] gunfire and was struck once in the leg[. Ouly] return[ed]
then to 308 Malleable by foot, leaving his bicycle at the scene.
Police officers responded to the 200-block of Mesabi Street, and
… locat[ed] several nine[-]millimeter casings on the street and
sidewalk leading up to the porch and curtilage of 201 Mesabi
Street.
[At] the crime scene[,] a tall black male having dreadlocks
[] exit[ed] 201 Mesabi Street. The owner [of the house] arrive[d]
on scene and indicate[d] an individual by the [n]ame of Gabe was
also staying with her. After reviewing some photographs[, law
enforcement] identified Gabe as [Appellant]. A search warrant
was granted for 201 Mesabi. During the execution of that search
warrant, the sole occupant of 201 Mesabi, [Appellant], was
located and detained. A Glock 43 nine[-]millimeter handgun was
located inside, along with live nine-millimeter ammunition
rounds….
…[S]erology, DNA, trace evidence, and ballistic report
analysis would demonstrate that [Appellant’s] DNA was located on
the handle, slide, and magazine of the gun found inside 201
Mesabi Street. Gunshot residue was located on [Appellant’s]
hands, indicating he had recently been in contact with a gun that
had been fired, and the nine[-]millimeter rounds located on the
sidewalk, street and curtilage of 201 Mesabi were fired from that
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handgun located inside of 201 Mesabi. It also matched the live
nine[-]millimeter rounds located inside of 201 Mesabi.
N.T. (No-Contest Plea Hearing), 12/12/22, at 11-13.
Appellant pled no-contest to aggravated assault at No. 143-2022, with
a negotiated sentence of 6 to 12 years in prison. At No. 145-2022, Appellant
pled no-contest to intimidation of a witness in exchange for a negotiated
sentence of 4 to 8 years in prison. The parties agreed the sentences would
run concurrently, and concurrently with any other sentences. The parties also
agreed Appellant would retain his appellate rights. See N.T., 12/12/22, at 7-
8; Trial Court Order, 12/12/22 (“The court further notes an agreement
between the parties that [Appellant] retains his appellate rights with regard
to suppression and related matters.” (some capitalization omitted)). The trial
court accepted the pleas as knowingly, intelligently, and voluntarily entered.
By order entered February 21, 2023, the trial court imposed the negotiated
sentences.
Appellant filed a timely pro se4 notice of appeal at each docket, with
each notice identifying both docket numbers.5 This Court consolidated the
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4 Appellant was represented by counsel throughout pretrial and plea
proceedings. It is unclear from the record when counsel withdrew from
representation. After Appellant filed his pro se notices of appeal, the trial
court appointed appellate counsel.
5 Our Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969,
971 (Pa. 2018), requires an appellant to file separate notices of appeal from
single orders that resolve issues on more than one docket. However, because
(Footnote Continued Next Page)
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appeals sua sponte. Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant raises the following issue for review:
Whether the trial court erred as a matter of law in determining
that the record of the … no contest plea hearing established a
factual basis for a valid plea to the offense of aggravated assault
under 18 Pa.C.S.A. § 2702(a)(1), because the plea hearing record
contains no facts showing that Appellant acted [] with the
necessary criminal mens rea and under circumstances manifesting
an extreme indifference to the value of human life?
Appellant’s Brief at 5 (some capitalization altered).
Appellant asserts the facts recited by the Commonwealth at the plea
hearing did not establish a factual basis for his no-contest plea to aggravated
assault. See id. at 12-15. According to Appellant, the Commonwealth did
not offer facts establishing he shot Ouly, or that he did so with the requisite
intent. Id. at 14-15.
We first consider whether Appellant preserved this issue for our review.
“[B]y entering a plea of guilty, a defendant waives his right to challenge on
direct appeal all non[-]jurisdictional defects except the legality of the sentence
and the validity of the plea.” Commonwealth v. Monjaras-Amaya, 163
A.3d 466, 468 (Pa. Super. 2017); see also Commonwealth v. Jabbie, 200
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Appellant’s notices of appeal identified both dockets, we decline to quash his
appeal. See Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super.
2020) (en banc) (where separate notices of appeal are filed at multiple
dockets, the inclusion of multiple docket numbers on each notice of appeal
does not invalidate the notices of appeal).
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A.3d 500, 505 (Pa. Super. 2018) (“[I]n terms of its effect upon a case, a plea
of nolo contendere is treated the same as a guilty plea.” (citation and
quotation marks omitted)).
A defendant wishing to challenge the voluntariness of a guilty plea
on direct appeal must either object during the plea colloquy or file
a motion to withdraw the plea within ten days of sentencing.
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver.
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (some
citations omitted).
During the plea hearing, Appellant confirmed his understanding of the
factual summary set forth by the Commonwealth. See N.T., 12/12/22, at 13.
Appellant agreed that based on the proposed evidence, “it’s likely a jury would
find [him] guilty” of aggravated assault. Id. Appellant did not object to the
factual recitation, nor did he raise any other objection to the validity of his
plea. Also, Appellant did not file a post-sentence motion to withdraw his plea.
Because Appellant failed to properly preserve his challenge to his no-contest
plea, we may not review the merits of his claim. See Lincoln, supra; see
also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal.”).6
Judgment of sentence affirmed.
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6 We also reject any suggestion by Appellant that the issue is preserved in the
portion of his plea agreement preserving his appellate rights.
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DATE: 10/17/2023
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