J-S42026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH JON PINER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1457 WDA 2021

Appeal from the Judgment of Sentence Entered June 1, 2021

In the Court of Common Pleas of Blair County Criminal Division at No(s): 

CP-07-CR-0000675-2012

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: JANUARY 17, 2023

Appellant, Kenneth Jon Piner, appeals from the judgment of sentence 

entered on June 1, 2021, as made final by the denial of Appellant’s 

post-sentence motion on October 9, 2021. We affirm.

On April 10, 2013, a jury found Appellant guilty of a number of crimes, 

including: possession of a controlled substance with the intent to deliver 

(“PWID”), dealing in proceeds of unlawful activities, corrupt organizations, 

criminal use of a communication facility, and conspiracy.1 On June 14, 2013, 

the trial court sentenced Appellant to serve an aggregate term of 36 to 72 

years in prison for his convictions. We affirmed Appellant’s judgment of 

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 5111(a)(1), 911(b)(3), 

7512(a), and 903, respectively.
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sentence on February 9, 2015 and the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal on September 23, 2015. See 

Commonwealth v. Piner, 120 A.3d 374 (Pa. Super. 2015) (unpublished 

memorandum), appeal denied, 124 A.3d 309 (Pa. 2015).

On February 22, 2016, Appellant filed a timely petition under the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court 

appointed counsel to represent Appellant during the proceedings and counsel 

filed an amended petition on Appellant’s behalf. The amended petition raised 

numerous claims for relief, including claims that: 1) “trial counsel was 

ineffective in that he failed to properly present, argue, and preserve for 

[appellate] review the argument that the Blair County District Attorney’s Office 

should not have been involved in [Appellant’s] prosecution, in that it had a 

conflict of interest in prosecuting [Appellant]” and 2) Appellant’s sentence was 

illegal, as he was sentenced under certain mandatory minimum sentencing 

statutes that the United States Supreme Court had declared unconstitutional 

in Alleyne v. United States, 570 U.S. 99 (2013). See Amended PCRA 

Petition, 5/1/19, at 1-4.

On May 20, 2020, the PCRA court granted, in part, and denied, in part, 

Appellant’s PCRA petition. Specifically, the PCRA court granted Appellant relief 

on his illegal sentencing claim and, thus, vacated Appellant’s sentence and 

scheduled the matter for resentencing. See PCRA Court Order, 5/20/20, at 

1. The PCRA court did so because: Appellant was sentenced under certain 

mandatory minimum sentencing statutes that the United States Supreme 
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Court had declared unconstitutional in Alleyne; Appellant’s judgment of 

sentence was not final at the time Alleyne was decided; and, Appellant filed 

a timely PCRA petition where he challenged the legality of his sentence. See

PCRA Court Order, 5/20/20, at 1; see also Commonwealth v. DiMatteo, 

177 A.3d 182, 192 (Pa. 2018) (holding: where a petitioner’s “sentence was 

rendered illegal before his judgment of sentence became final and he 

presented his claim in a timely petition for post conviction relief, he is entitled 

to have his illegal sentence remedied”). However, the PCRA court denied 

Appellant relief on his remaining claims, including Appellant’s claim that his 

trial counsel was ineffective for failing to argue that “the Blair County District 

Attorney’s Office should not have been involved in [Appellant’s] prosecution, 

in that it had a conflict of interest in prosecuting [Appellant].” See PCRA Court 

Order, 5/20/20, at 1. Appellant did not file a notice of appeal from the PCRA 

court’s order. See Commonwealth v. Watley, 153 A.3d 1034, 1039 n.3 

(Pa. Super. 2016) (holding: an order granting in part and denying in part all 

issues raised in a PCRA petition is a final order for purposes of appeal); 

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (“the 

PCRA court's order granting relief with regard to sentencing and denying all 

other claims [is] a final appealable order”).

On June 1, 2021, the trial court resentenced Appellant to serve an 

aggregate term of 18 to 36 years in prison for his convictions. After 

Appellant’s timely post-sentence motion was denied by operation of law,
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Appellant filed a timely notice of appeal from his judgment of sentence. 

Appellant raises one claim on appeal:

Whether the trial court erred in denying Appellant’s [PCRA 

petition,] averring that his trial counsel was ineffective in 

failing to object to the Blair County District Attorney’s Office 

assisting in his prosecution when it had a conflict of interest 

in prosecuting [Appellant]?

Appellant’s Brief at 4.

The action at bar is Appellant’s direct appeal from his judgment of 

sentence, following resentencing. Notwithstanding this fact, Appellant’s claim 

of error on appeal relates solely to the partial denial of his earlier PCRA 

petition. However, the PCRA court’s May 20, 2020 order – which granted, in 

part, and denied, in part, Appellant’s PCRA petition (and, specifically, denied 

Appellant relief on his claim that his trial counsel was ineffective for “failing to 

object to the Blair County District Attorney’s Office assisting in his prosecution 

when it had a conflict of interest in prosecuting [Appellant]”) – was final when 

entered. See Grove, 170 A.3d at 1138 (“the PCRA court's order granting 

relief with regard to sentencing and denying all other claims [is] a final 

appealable order”). Thus, Appellant had until June 19, 2020 to file a notice of 

appeal pertaining to the PCRA court’s May 20, 2020 order, where he could 

have raised the issue he currently brings before this Court. See id. Appellant 

did not do so – and, on this direct appeal from his judgment of sentence, 

Appellant cannot now challenge the denial of an ineffective assistance of 

counsel claim that was only contained in Appellant’s earlier PCRA petition. 

See Commonwealth v. Fantauzzi, 275 A.3d 986, 991 n.12 (Pa. Super. 
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2022) (“[a] PCRA court's order granting a new sentencing proceeding ends 

the collateral proceedings, and the new sentencing proceeding is a trial court 

function not a function of the collateral proceedings”); cf. Commonwealth 

v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) (“a successful first PCRA 

petition does not ‘reset the clock’ for the calculation of the finality of the 

judgment of sentence for purposes of the PCRA where the relief granted in the 

first petition neither restored a petitioner's direct appeal rights nor disturbed 

his conviction, but, rather, affected his sentence only”); Commonwealth v. 

Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (holding: where a 

defendant’s first direct appeal resulted in a remand for the limited purpose of 

resentencing, the defendant “is barred from raising any issues other than a 

challenge to the sentence imposed on remand” in the direct appeal from the 

resentencing); Commonwealth v. Anderson, 801 A.2d 1264 (Pa. Super. 

2002) (where the defendant succeeded on his illegal sentencing claim in an

earlier direct appeal, the defendant was not permitted to challenge his 

convictions in the direct appeal following resentencing; at that time, “the only 

issues reviewable in a direct appeal would be challenges to the sentence 

imposed following remand”).

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2 We also note that, after Appellant filed his notice of appeal in this case, 

Pennsylvania Rule of Appellate Procedure 341 was amended to add a new 

subsection dealing expressly with the finality of PCRA orders. Rule 341(f) now 

declares:

(f) Post Conviction Relief Act orders.
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Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/17/2023

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(1) An order granting, denying, dismissing, or otherwise finally 

disposing of a petition for post-conviction collateral relief shall 

constitute a final order for purposes of appeal.

(2) An order granting sentencing relief, but denying, dismissing, 

or otherwise disposing of all other claims within a petition for 

post-conviction collateral relief, shall constitute a final order for 

purposes of appeal.

Pa.R.A.P. 341(f) (effective July 1, 2021).

New Rule 341(f) codified the holdings of Watley and Grove and, thus, 

provides further support for affirming the PCRA court’s order in this case. 

Watley, 153 A.3d at 1039 n.3 (holding: an order granting in part and denying 

in part all issues raised in a PCRA petition is a final order for purposes of 

appeal); Grove, 170 A.3d at 1138 (“the PCRA court's order granting relief 

with regard to sentencing and denying all other claims [is] a final appealable 

order”); see also Pa.R.A.P. 341 Note (“Paragraph (f)--Post Conviction Relief 

Act Orders--A failure to timely file an appeal pursuant to paragraph (f)(2) shall 

constitute a waiver of all objections to such an order”).