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Commonwealth v. Grove

Superior Court of Pennsylvania

August 31, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
BARRY E. GROVE Appellant

         Appeal from the PCRA Order entered July 12, 2017 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000873-2013

          BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

          OPINION

          SOLANO, J.

         Appellant 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.

         In 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.

         Grove 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 her.

         The 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.

         The 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.

         In 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.

         Grove 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 conviction.

         On July 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.

         Grove 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. H.[1] 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.[2] Grove also noted that Parks Miller posted comments about him on social media. PCRA Pet. at 8-12.

         Grove's 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[3]; (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.

         On the 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.

         On November 22, 2016, the PCRA court, with Clinton County Court of Common Pleas Senior Judge J. Michael Williamson specially presiding, [4] 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.

         On 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.

         The 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.

         On 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.

         On January 25, 2017, Judge Williamson filed an opinion and order dated January 23, 2017 that granted Grove's PCRA petition in part.[5] 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 re-sentencing.[6]

         Later 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.

         On 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.[7]

         On June 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. See id.

         On July 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.[8] 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 subpoena.

         On July 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.[9]

         In 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. § 6105(a)(2)(i)?
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.[10]

         "[I]n 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. Super. 2017).

         Jurisdiction

         Before 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).

         Generally, 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.

         In 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."[11] 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 id.

         Recently, 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).[12] 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.[13]

         Most 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 jurisdiction.[14]

         In the 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.[15]

         Ineffective Assistance of Counsel (Grove's Claims I-III)

         In his 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 framework:

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 counsel's error.

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. 2013).

         The PCRA court found "all of the issues regarding potential defenses to have been finally litigated and not further reviewable on a post-conviction petition[16] 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 ...


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