from the PCRA Order entered July 12, 2017 In the Court of
Common Pleas of Centre County Criminal Division at No(s):
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
Barry E. Grove appeals from the portion of an order that
denied in part his petition for relief under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
2014, Grove was convicted of one count of cruelty to animals,
18 Pa. C.S. § 5511(a)(2.1)(A), for shooting his dog and
leaving it to die. He also was convicted of violating the
Uniform Firearms Act, 18 Pa. C.S. § 6105(a)(1), because
a prior conviction made him ineligible to own a firearm.
Grove claims that his trial counsel was ineffective in
failing to make various arguments as part of his defense
against the firearms charge and that he is entitled to a new
trial because ex parte communications between the
trial judge and the prosecutors resulted in his conviction by
a tribunal that was not impartial.
shot the dog, named Anne, on April 23, 2013, in his
neighbor's yard. He says he did so because the dog had
killed his chickens. Grove's neighbor, Sherry McCloskey,
called the police. When the police arrived, they found Anne
to be severely injured, but still alive, and they euthanized
police checked Grove's criminal history and discovered
that he had been convicted of criminal trespass in 1978.
Under an amended provision of the Uniform Firearms Act that
was in effect in 2013, Grove's 1978 conviction made it
unlawful for him to own a gun. Therefore, in connection with
the April 23, 2013 incident, Grove was charged with illegal
possession of a firearm, in addition to the charge of cruelty
to animals for the shooting of Anne. The trial court severed
the two charges.
criminal proceedings were held before the Honorable Bradley
Lunsford of the Court of Common Pleas of Centre County. On
December 9, 2013, Grove moved in limine for the
trial court to preclude the Commonwealth from providing any
details regarding the animal cruelty charge at his jury trial
on the firearms charge. Thereafter, on January 8, 2014, and
January 15, 2014, Grove filed an original and amended motion
to dismiss the firearms charge on the grounds that: (1) he
was not prohibited from possessing a firearm at the time of
his 1978 conviction; (2) he received no notice when the law
was amended to make him ineligible to own a gun in 1995; and
(3) that 1995 amendment should not apply to him
retroactively. On January 23, 2014, one day before
Grove's scheduled jury trial, Judge Lunsford entered an
order denying Grove's motions to dismiss. At that same
time, Judge Lunsford granted a motion by the Commonwealth to
preclude Grove from presenting a defense to the firearms
charge based on his ignorance of the law.
light of the trial court's rulings, Grove waived his
right to a jury trial and proceeded to a bench trial before
Judge Lunsford on the firearms charge on January 24, 2014.
That same day, the trial court entered a verdict of guilty on
that charge. On February 20, 2014, the court imposed a
sentence of five to ten years' imprisonment for
Grove's conviction on the firearms charge. On March 12,
2014, Grove pleaded guilty to one count of cruelty to
animals. That same day, Judge Lunsford sentenced him to nine
months to two years' imprisonment on that charge,
consecutive to his sentence for the firearms charge. Grove
filed a timely post-sentence motion, raising the same claims
that he presented in his pretrial motion to dismiss and his
motion in limine. On June 12 and 16, 2014, the trial
court conducted hearings on Grove's post-sentence motion,
and on June 16, 2014, it denied that motion.
filed a timely direct appeal from his judgment of sentence
for the firearms conviction. In that appeal, Grove claimed
that: (1) his prosecution constituted an improper retroactive
application of the law; (2) his prosecution constituted an
ex post facto application of the law; (3) the
punishment for his crime was cruel and unusual punishment;
(4) his prosecution for the firearms violation contravened
due process because Grove was not notified of the 1995
amendment to the statute which made him ineligible to possess
a firearm; (5) the retroactive application of that 1995
amendment stripped Grove of his constitutional right to bear
arms; (6) the trial court erred in concluding that the
Commonwealth was not required to prove Grove knew his
possession of a firearm was prohibited; (7) the trial court
erred in granting the Commonwealth's pre-trial motion
in limine; (8) the trial court erred in denying
Grove's request for jury instructions, thus precluding
him from offering a defense that he was unaware he was
violating the Uniform Firearms Act; and (9) the trial court
abused its discretion in denying Grove bail following his
28, 2015, this Court affirmed the judgment of sentence. We
held that Grove's first, second, third, sixth, seventh,
eighth, and ninth claims were meritless. Commonwealth v.
Grove, 1135 MDA 2014, at 10-20, 23-38 (Pa. Super. July
28, 2015) (unpublished memorandum), appeal denied,
130 A.3d 1287 (Pa. 2015). We held that Grove's fourth and
fifth claims (due process and right to bear arms,
respectively) were arguably waived because they were
inadequately developed, but added that these claims were also
meritless. Id. at 22-23. On December 11, 2015, the
Supreme Court of Pennsylvania denied Grove's petition for
allowance of appeal.
filed the instant PCRA petition on October 12, 2016, and
amended it on December 27, 2016. Grove claimed that he was
denied the right to an impartial tribunal based on alleged
ex parte communications among Judge Lunsford, Centre
County District Attorney Stacy Parks Miller, and members of a
social media-based group called "Justice for Anne."
In particular, Grove cited Facebook posts in which
"Justice for Anne" activists recounted sending
e-mails to Judge Lunsford urging him to impose a harsh
penalty and receiving "a very understanding
response" from Judge Lunsford. PCRA Pet. at 2; Ex.
Grove also relied on an affidavit by Judge Lunsford's
former court reporter, Maggie Miller, that said Judge
Lunsford told her that Parks Miller sent him text messages to
complain about his rulings during another criminal trial (the
April 2012 trial of Randall Brooks). PCRA Pet. at 6-7; Ex. A.
Grove cited records documenting electronic communications
between Judge Lunsford and the Grove prosecutors
(Parks-Miller and Nathan Boob) from May 30, 2014, through
December 5, 2014. PCRA Pet. at 7; Ex. B. Grove also noted
that Parks Miller posted comments about him on social media.
PCRA Pet. at 8-12.
PCRA petition also claimed that his trial counsel had been
ineffective for failing to (1) move for recusal of Judge
Lunsford based on the aforementioned alleged ex
parte communications; (2) argue that Grove was not, as a
matter of law, disqualified from possessing a firearm; (3)
raise an Equal Protection claim; (4) raise a Second Amendment
claim; (5) challenge an incorrect prior record score at
Grove's sentencing hearing; (6) challenge the testimony
of Sherry McCloskey; (7) present a defense under Section 302
of the Animal Destruction Method Authorization Law, 3 P.S.
§ 328.302; (8) develop a Second Amendment claim in
Grove's direct appeal; (9) present the affirmative
defense to the firearms charge under 18 Pa.C.S. §
6105(a)(2)(i) (providing that a person prohibited from
possessing a firearm shall have 60 days from imposition of
that disability to sell or transfer his firearms); and (10)
move to quash the firearms charge on the basis that
application of the amended firearms statute to Grove was an
unlawful bill of attainder.
same day that he filed his initial PCRA petition, Grove filed
a motion for discovery that sought evidence relating to (1)
ex parte electronic communications between Judge
Lunsford and Parks Miller or other members of the Centre
County District Attorney's Office; and (2) Facebook and
other media communications between Parks Miller and members
of the public regarding Grove.
November 22, 2016, the PCRA court, with Clinton County Court
of Common Pleas Senior Judge J. Michael Williamson specially
presiding,  held a hearing on Grove's motion for
discovery. At that hearing, an employee of the Centre County
Commissioner's Office, Julie Lutz, testified regarding
records of telephone calls and text messages between Judge
Lunsford and either District Attorney Parks Miller or
Assistant District Attorney Nathan Boob. In addition, Maggie
Miller, Judge Lunsford's former court reporter, testified
(over a hearsay objection) that during the April 2012 trial
of Randall Brooks, Judge Lunsford told her that Parks Miller
had been texting him to complain about his rulings in that
case. N.T., Nov. 22, 2016, at 67-69. Parks Miller testified,
denying Maggie Miller's allegations and denying that she
sent Judge Lunsford text messages regarding Grove's case.
Id. at 103-04, 118-19. Parks Miller further
testified that she no longer had the phone she used at the
time of Grove's trial. Id. at 102-04.
November 23, 2016, the PCRA court issued an order granting
Grove's motion for discovery. The Commonwealth filed a
timely notice of appeal from the PCRA court's discovery
order, and that appeal was docketed in this Court at No. 1934
MDA 2016. On January 4, 2017, while the Commonwealth's
appeal was pending, Grove served a subpoena on former Judge
Lunsford to appear and testify at a PCRA hearing on January
11, 2017. Lunsford filed a motion to quash that subpoena,
which the PCRA court denied on January 11, 2017. Lunsford
filed an appeal from that order, which was docketed in this
Court at No. 182 MDA 2017.
PCRA hearing resumed on January 11, 2017, and included
testimony regarding records of telephone communications
between Judge Lunsford and the District Attorney's
office. Also at that hearing, Grove's trial counsel
testified about Grove's ineffective assistance of counsel
claims, and an employee of the Probation and Parole
Department testified regarding the calculation of Grove's
prior record score. The hearing was adjourned and scheduled
to continue on January 25, 2017.
January 24, 2017, the Commonwealth filed a motion in this
Court to stay the January 25 hearing because it would include
testimony about some of the same issues as to which the
Commonwealth opposed discovery in the appeal it had filed
from Judge Williamson's November 23, 2016 order. We
granted the Commonwealth's motion that same day.
January 25, 2017, Judge Williamson filed an opinion and order
dated January 23, 2017 that granted Grove's PCRA petition
in part. The court held that trial counsel was
ineffective for failing to correct an error in Grove's
prior record score at the time of sentencing, and it
therefore vacated Grove's sentences for both the gun and
animal cruelty convictions and ordered that Grove be
resentenced. In light of that disposition, the PCRA court
found it unnecessary to address Grove's claims that he
was denied the right to an impartial tribunal and that trial
counsel was ineffective in failing to successfully move for
Judge Lunsford's recusal. The PCRA court denied relief on
all of Grove's remaining claims and ordered that Grove be
released from prison and placed on house arrest pending his
on January 25, 2017, the Commonwealth filed an emergency
motion to stay the PCRA court's order. The Commonwealth
argued that the PCRA court lacked jurisdiction to enter that
order while the Commonwealth's appeal from Judge
Williamson's November 23, 2016 discovery order was
pending, see Pa.R.A.P. 1701(a), and while this
Court's January 24 stay order was in place. That same
day, this Court issued an interim order temporarily staying
the PCRA court's January 25, 2017 order and giving Grove
seven days to respond to the Commonwealth's emergency
motion. In a timely response, Grove averred that the
Commonwealth's appeal of the discovery order was moot in
light of the PCRA court's January 25, 2017 order granting
partial relief. On February 9, 2017, this Court granted the
Commonwealth's motion to stay the PCRA court's
January 25, 2017 order pending disposition of the
Commonwealth's appeal of the discovery order.
February 24, 2017, Grove appealed from that portion of the
PCRA court's January 25, 2017 order that denied relief
other than resentencing. That appeal was docketed in this
Court at No. 358 MDA 2017.
20, 2017, we heard argument on the Commonwealth's appeal
from Judge Williamson's discovery order (No. 1934 MDA
2016) and Lunsford's appeal from the order enforcing
Grove's subpoena (No. 182 MDA 2017). During argument,
counsel for the Commonwealth and Grove both agreed that the
PCRA court's grant of partial relief made the
Commonwealth's appeal moot. We agreed, and on July 5,
2017, we issued a memorandum decision stating that "the
PCRA court's January 25, 2017 order has made such a
change to this case that, in terms of a mootness analysis
under Pennsylvania law, there no longer is such an extant
case or controversy as would justify our continuation with
this appeal." Commonwealth v. Grove, No. 1934
MDA 2016, at 20 (Pa. Super. July 5, 2017) (unpublished
memorandum). However, we also expressed doubts about whether
the PCRA court had jurisdiction to enter the January 25, 2017
order in light of the pending appeals and our January 24 stay
order. Id. at 21. To dispel those doubts, we
remanded the case to the PCRA court "for the limited
purpose of allowing it . . . to either (1) re-enter its
January 25, 2017 order, or (2) inform this Court of any
reasons why it concludes that it should not do so."
Id. at 22. We explained that if the PCRA court
re-entered its January 25, 2017 order, we would quash the
Commonwealth's appeal from the discovery order as moot.
6, 2017, the PCRA court stated that it would re-enter its
January 25, 2017 order. The reissued order was entered on the
PCRA court's docket on July 11, 2017, and served on the
parties on July 12, 2017. Consequently, we dismissed as moot the
Commonwealth's appeal from Judge Williamson's
discovery order. We also dismissed as moot Lunsford's
appeal from the order denying his motion to quash the
14, 2017, in the instant appeal (No. 358 MDA 2017), we issued
an order explaining that the July 12, 2017 PCRA court order
superseded the January 25, 2017 order. We further stated:
Because the January 25, 2017 order from which this appeal was
taken has been superseded, Grove shall file a new notice of
appeal from the July 12, 2017 order if he wishes to continue
to litigate the matters advanced in this appeal. If Grove
elects not to continue to litigate these matters, Grove shall
notify this Court of that fact within 10 days of the date of
this order and this appeal will then be dismissed.
Order at ¶ 3, Grove, 358 MDA 2017 (Pa. Super.
July 14, 2017). We further directed:
Upon receipt of a notice of appeal from the July 12, 2017
order, the prothonotary of this Court shall consolidate that
appeal with [the appeal from the January 25, 2017 order], and
the briefs already filed in this appeal shall be deemed to
apply to both appeals. No further briefing shall be required.
Id. at ¶ 5. On, July 24, 2017, Grove filed a
notice of appeal from the July 12, 2017 order. That appeal
was docketed in this Court at No. 1158 MDA 2017, and we have
consolidated it with No. 358 MDA 2017.
these consolidated appeals, Grove raises the following
issues, as stated in his brief:
I. Did the PCRA court err in rejecting [Grove]'s claim
that trial counsel was ineffective for conceding that [Grove]
had been convicted of an "enumerated offense" under
18 Pa.C.S. § 6105(b)?
II. Did the PCRA court err in rejecting [Grove]'s claim
that trial counsel was ineffective for failing to argue that
inclusion of Grove's 1978 criminal trespass conviction as
an "enumerated offense" violated the Equal
Protection Clause of the United States Constitution and
Article I, § 26, of the Pennsylvania Constitution?
III. Did the PCRA court err in rejecting [Grove]'s claim
that trial counsel was ineffective for failing to present the
affirmative defense set forth in 18 Pa.C.S. §
IV. Did the PCRA court err in failing to hold an evidentiary
hearing on [Grove]'s claim that he had been denied an
impartial tribunal due to ex parte communications between
prosecutors and the judge presiding over his pre-trial,
trial, and post-sentence proceedings?
Grove's Brief at 4-5.
reviewing the propriety of an order granting or denying PCRA
relief, this Court is limited to ascertaining whether the
evidence supports the determination of the PCRA court and
whether the ruling is free of legal error."
Commonwealth v. Andrews, 158 A.3d 1260, 1262-63 (Pa.
addressing the substance of Grove's claims, we must
determine whether we have jurisdiction over these appeals.
"This Court may consider the issue of jurisdiction sua
sponte." Commonwealth v. Ivy, 146 A.3d 241, 255
(Pa. Super. 2016).
this Court has jurisdiction of "appeals from final
orders of the courts of common pleas." 42 Pa.C.S. §
742. Rule of Appellate Procedure 341 defines "final
order" as, among other things, any order that
"disposes of all claims and of all parties."
Pa.R.A.P. 341(b)(1). Here, the PCRA court's July 12, 2015
order granted Grove's petition in part and denied it in
part, and it ordered that Grove be resentenced. Whether such
an order is a final appealable order has been subject to
dispute in this Court.
Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001), a
capital case, the Supreme Court of Pennsylvania held that a
PCRA order denying claims for relief from conviction but
granting a new sentencing hearing was a final order.
Id. at 647-48. The Court relied on what was then
Rule of Criminal Procedure 1510 (now Rule 910), which stated,
"An order denying, dismissing, or otherwise finally
disposing of a petition for post-conviction collateral relief
shall constitute a final order for purposes of
appeal." See Bryant, 780 A.2d at 648.
The Court held that the order "dispose[d] of all claims
and of all parties" under Pa.R.A.P. 341(b). See
this Court, en banc, addressed whether an order
granting a new sentencing hearing and denying all other
claims in a PCRA petition is a final order in a non-capital
case. See Commonwealth v. Gaines, 127 A.3d 15 (Pa.
Super. 2015) (en banc). No opinion commanded a
majority of the Court. Three judges concluded that such an
order is appealable. See id. at 17-18 (opinion by
Judge Mundy, joined by Judges Panella and Lazarus). They
cited Bryant and relied on Rule of Criminal
Procedure 910, explaining:
The PCRA court granted one sentencing claim and denied all
claims for a new trial. As a result, the PCRA court's . .
. order ended collateral proceedings and called for a new
sentencing proceeding, which is a trial court function, not a
collateral proceeding function. Therefore, the PCRA
court's order disposed of all of Appellant's claims
in his PCRA petition, terminating its role in the
proceedings. Under a plain, straightforward application of
Rule 910, the PCRA court's order was a final one.
Id. at 17 (citation omitted). Three other
judges concluded that such an order is not appealable.
See id. at 22-25 (opinion by Judge Bender, joined by
President Judge Gantman and Judge Shogan). They opined that
the PCRA court had entered "a hybrid order that is not
final for purposes of Pa.R.Crim.P. 910, " id.
at 22, and advanced policy considerations (avoidance of
multiple appeals and the prospect of a "waiver
trap") to postpone the determination of finality until
resentencing. Id. at 24-25. They distinguished
Bryant as "applying only to capital
petitioners." Id. at 24.
recently, in Commonwealth v. Watley, 153 A.3d 1034
(Pa. Super. 2016), appeal denied, No. 69 MAL 2017,
2017 WL 2538785 (Pa., June 12, 2017), a panel of this Court
cited the lead opinion in Gaines for the proposition
that "an order granting in part and denying in part all
issues raised in [the defendant's] PCRA petition was a
final order for purposes of appeal." Id. at
1039 n.3. In Watley, as in Gaines and this
case, the PCRA court had ordered resentencing (which had not
yet occurred), but denied all other relief. See id.
at 1039. The Court in Watley did not discuss whether
the pendency of resentencing affected its
absence of an en banc resolution of this issue, we
conclude that we are bound by this Court's decision in
Watley and that the PCRA court's order granting
relief with regard to sentencing and denying all other claims
therefore was a final appealable order. Accordingly,
Grove's appeal is properly before us.
Assistance of Counsel (Grove's Claims I-III)
first three claims, Grove alleges that his trial counsel was
ineffective for failing to raise certain defenses. In
reviewing these claims, we are guided by a well-settled
Counsel is presumed to have been effective. To overcome this
presumption, a PCRA petitioner must plead and prove that: (1)
the underlying legal claim is of arguable merit; (2)
counsel's action or inaction lacked any objectively
reasonable basis designed to effectuate his client's
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for
Andrews, 158 A.3d at 1263 (quotation marks and
citation omitted). "If a petitioner fails to prove any
of these [three] prongs, his claim fails."
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
PCRA court found "all of the issues regarding potential
defenses to have been finally litigated and not further
reviewable on a post-conviction petition and that
there was no ineffectiveness of counsel." PCRA Ct. Op.
at 2. The PCRA court noted that most of Grove's claims
"emphasize the inherent unfairness and purported
unconstitutionality of Grove's prosecution based upon a
disabling conviction ...