Commonwealth v. Grove

Decision Date31 August 2017
Docket NumberNos. 358 MDA 2017, 1158 MDA 2017.,s. 358 MDA 2017, 1158 MDA 2017.
Citation170 A.3d 1127
Parties COMMONWEALTH of Pennsylvania, Appellee v. Barry E. GROVE, Appellant
CourtPennsylvania Superior Court

Sean P. McGraw, State College, for appellant.

Stacy P. Miller, District Attorney, Bellefonte, for Commonwealth, appellee.

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

OPINION BY 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 enteredan 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, 2015 WL 6133147 (Pa. Super. July 28, 2015) (unpublished memorandum), appeal denied, 634 Pa. 743, 130 A.3d 1287 (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. § 328.3023 ; (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.

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