Commonwealth v. Grove

J-A15046-17

2017 PA Super 286

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BARRY E. GROVE

Appellant No. 358 MDA 2017

No. 1158 MDA 2017

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 BY SOLANO, J.: FILED AUGUST 31, 2017

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.

J-A15046-17

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

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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

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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

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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

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1

Other posts indicate that Judge Lunsford asked the activists to stop

sending him messages about Grove. See Ex. H to PCRA Pet.

2

The records had been compiled in response to requests made in December

2014 and February 2015, under the Pennsylvania Right to Know Law, 65

P.S. §§ 67.101 to 67.3104. See PCRA Pet. at 7. In a later proceeding

involving similar requests for communications involving other Centre County

judges, the Commonwealth Court held that it was improper for the county to

produce such records without first obtaining approval from an appropriate

judicial open records officer. See Grine v. Cty. of Centre, 138 A.3d 88

(Pa. Cmwlth.), appeal denied, 157 A.3d 483 (Pa. 2016).

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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

____________________________________________

3

Section 302 prescribes exceptions to the authorized methods of

euthanizing domestic animals.

4

Judge Lunsford had retired in January of 2016.

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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

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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

____________________________________________

5

To avoid confusion, we shall use January 25, 2017 as the date of this

order.

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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

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6

The January 25, 2017 order reads:

NOW, this 23rd day of January, 2017, for the reasons set

forth above, IT IS HEREBY ORDERED as follows:

1. Defendant is granted relief with respect to the

sentences imposed by Judge Lunsford; those sentences are set

aside and the Court Administrator of Centre County is directed to

schedule these matters for resentencing.

2. In all other respects, the relief requested by

Defendant is DENIED.

3. Defendant is advised he has the right to appeal from

the final Sentencing Order to be entered in the future.

4. This Order shall not constitute a final Order for

purposes of appeal pursuant to Rule 910 of the Rules of Criminal

Procedure until Defendant is resentenced.

5. Pending resentencing, Defendant shall be

immediately released from incarceration on his own

recognizance. Defendant shall be on total house arrest at the

residence of his mother and stepfather in Julian, Centre County,

Pennsylvania and shall not leave said residence except to

undergo medical procedures.

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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.”

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7

On April 10, 2017, we issued a briefing schedule that required Grove’s brief

to be filed by May 22, 2017. Grove missed that deadline, and on May 24,

2017, the Commonwealth moved to dismiss Grove’s appeal. Grove filed his

brief later that day. On June 22, 2017, we denied the Commonwealth’s

motion to dismiss.

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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:

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8

To avoid confusion, we shall use July 12, 2017 as the date of this order.

The order reads: “We reenter our Order dated January 23, 2017, filed

January 25, 2017.” The order therefore incorporates the full text of the

January 25, 2017 order.

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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

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9

Because we have already consolidated the appeals, Grove’s motion for

consolidation is denied as moot. Grove’s motion to consolidate his case with

another case raising issues of ex parte communications, Commonwealth v.

McClure, 145 MDA 2017, is denied.

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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).

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10

In its brief, the Commonwealth argues that the PCRA court erred in

granting Grove a new sentencing hearing based on his claim that his counsel

was ineffective for not challenging his prior record score at sentencing.

Because the Commonwealth has not filed a cross-appeal, we will not address

this claim. See Arcidiacono v. Timeless Towns of the Americas, Inc.,

526 A.2d 804, 806 n.2 (Pa. Super. 1987) (“An appellee who files no counter-

appeal cannot raise issues not raised by the appellant” (citations omitted)).

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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

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11

As renumbered Rule 910, this rule currently provides, “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.”

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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

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12

These judges also relied on Appellate Rule 341(b)(2), which stated that an

order is final if it “is expressly defined as a final order by statute.” Rule

341(b)(2) was rescinded later in 2015 to “eliminate[] a potential waiver trap

created by legislative use of the adjective ‘final’ to describe orders that were

procedurally interlocutory but nonetheless designated as appealable as of

right.” Pa.R.A.P. 341, Note. Currently, Appellate Rule 311(a)(8) allows an

interlocutory appeal as of right from “[a]n order that is made final or

appealable by statute or general rule, even though the order does not

dispose of all claims and of all parties.”

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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

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13

Of the remaining three judges on the en banc panel, one (Judge Allen)

did not participate and the remainder concluded that the issue was not

properly presented. See 127 A.3d at 20-22 (opinion by Judge Donohue

joined by Judge Stabile).

14

The Court noted that the PCRA court had made resentencing “contingent

upon lack of a timely appeal in this matter.” Watley, 153 A.3d at 1039 n.3.

15

Paragraph 4 of the PCRA court’s January 25, 2017 order stated, “[t]his

Order shall not constitute a final Order for purposes of appeal pursuant to

Rule 910 of the Rules of Criminal Procedure until [Grove] is resentenced.”

(Footnote Continued Next Page)

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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.

_______________________

(Footnote Continued)

That paragraph continues to apply under the reissued order of July 12,

2017. Nevertheless, the paragraph is not dispositive of our jurisdiction.

Whether an order is a final order for purposes of appellate review is a

question of law. Commonwealth v. Scarborough, 64 A.3d 602, 607 (Pa.

2013). Thus, we do not defer to any pronouncement by a trial court as to

whether its order is final or otherwise appealable. Id.; cf. Pullman Power

Prods. of Canada, Ltd. v. Basic Eng’g, Inc., 713 A.2d 1169, 1173-74 (Pa.

Super. 1998) (rejecting trial court’s rationale that order at issue was final

and appealable because “an immediate appeal . . . would facilitate resolution

of the entire case”). Under Gaines and Watley, accepting the PCRA court’s

bald assertion would result in either party losing its right to appeal from the

partial grant or denial of PCRA relief. See Gaines, 127 A.3d at 17-18.

16

To be eligible for relief under the PCRA, a petitioner must plead and prove,

among other things, that his or her “allegation of error has not been

(Footnote Continued Next Page)

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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 that occurred prior to the enactment of

the current version of [18 Pa.C.S. § 6105].” Id.

While we agree with the PCRA court that Grove’s claims regarding

defenses his counsel did not raise have a common theme, we do not agree

that they have been previously litigated. First, “collateral claims of trial

counsel ineffectiveness deriving from an underlying claim of error that was

litigated on direct appeal cannot automatically be dismissed as ‘previously

litigated.’” Commonwealth v. Puksar, 951 A.2d 267, 274 (Pa. 2008).

Second, the defenses Grove now relies upon are distinct from those raised

on direct appeal. Cf. Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa.

2011) (holding that challenges to sufficiency and weight of the evidence

were distinct from due process claim, even though all claims were “premised

upon a purported lack of reliability of the evidence supporting the first

degree murder conviction”), cert. denied, 133 S. Ct. 835 (2013).

Although we disagree with the PCRA court’s conclusion that Grove’s

ineffective assistance of counsel claims have been previously litigated, “we

may affirm the PCRA court’s decision on any basis.” Commonwealth v.

_______________________

(Footnote Continued)

previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). An issue has been

previously litigated if “the highest appellate court in which the petitioner

could have had review as a matter of right has ruled on the merits of the

issue; or . . . it has been raised and decided in a proceeding collaterally

attacking the conviction or sentence.” Id. § 9544(a).

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Williams, 977 A.2d 1174, 1177 n.8 (Pa. Super. 2009), appeal denied, 990

A.2d 730 (Pa. 2010). As explained below, we hold that the legal claims

underlying Grove’s ineffective assistance of counsel claims are meritless, and

we therefore affirm the PCRA court’s decision to deny relief on those claims.

Conviction of an “enumerated offense” under 18 Pa.C.S. § 6105

Grove’s first and second claims involve amendments to the Crimes

Code that made his possession of a gun in 2013 unlawful. To understand

Grove’s arguments, it is necessary to review the statutory changes.

In 1978, Grove pleaded guilty to violating the criminal trespass

statute, 18 Pa. C.S. § 3503(a), by unlawfully entering a State College train

station.17 At the time he committed that crime, the relevant portion of this

statute provided:

(a) Buildings and occupied structures.–

(1) A person commits an offense if, knowing that he is not

licensed or privileged to do so, he enters or gains entrance by

subterfuge or surreptitiously remains in any building or

occupied structure, or separately secured or occupied portion

thereof.

(2) An offense under this subsection is a felony of the second

degree.

____________________________________________

17

Grove pleaded guilty to the following count in the criminal information:

BARRY EARL GROVE, on or about February 18, 1978, . . .

knowing that he was not licensed or privileged to do so, did

unlawfully and feloniously enter or gain entrance by subterfuge

or did surreptitiously remain in the . . . Train Station [on West

College Avenue in State College], or separately secured or

occupied portion thereof.

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Act of December 6, 1972, No. 1972-334, § 1 (enacting 18 Pa. C.S.

§ 3503(a)), 1972 Pa. Laws 1482, 1534.

Following Grove’s conviction, and effective August 22, 1978, Section

3503(a) was amended to read:

(a) Buildings and occupied structures.–

(1) A person commits an offense if, knowing that he is not

licensed or privileged to do so, he:

(i) enters, gains entrance by subterfuge or surreptitiously

remains in any building or occupied structure or separately

secured or occupied portion thereof; or

(ii) breaks into any building or occupied structure or

separately secured or occupied portion thereof.

(2) An offense under subparagraph (i) of paragraph (1) is a

felony of the third degree, and an offense under subparagraph

(ii) is a felony of the second degree.

Act of June 23, 1978, No. 1978-76, § 1, 1978 Pa. Laws 497 (effective in 60

days). 18 The 1978 amendment made two significant changes. First, it

added a separate provision to deal with “breaking into” a building — conduct

not separately addressed by the statute before the amendment (and,

therefore, conduct of which Grove was not convicted in 1978). Second, it

reduced the grading for trespass not involving “breaking into” a building

from a second-degree felony to a third-degree felony. Section 3503(a) has

____________________________________________

18

Section 3503(a)(3) defined “breaks into” as “[t]o gain entry by force,

breaking, intimidation, unauthorized opening of locks, or through an opening

not designed for human access.”

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J-A15046-17

remained materially unchanged since the 1978 amendment.

Before 1995, the Uniform Firearms Act, 18 Pa.C.S. § 6105, provided,

“No person who has been convicted in this Commonwealth or elsewhere of a

crime of violence shall own a firearm, or have one in his possession or

control.” Act of December 6, 1972, No. 1972-334, § 1 (enacting 18 Pa. C.S.

§ 6105), 1972 Pa. Laws 1482, 1575 (effective June 6, 1973). At that time,

Section 6102 of the Crimes Code defined “crime of violence” as, “Any of the

following crimes, or an attempt to commit any of the same, namely: murder,

rape, aggravated assault, robbery, burglary, entering a building with intent

to commit a crime therein, and kidnapping.” Id. Because Grove’s

conviction for criminal trespass was not a “crime of violence” under this

definition, Grove was not prohibited from owning a firearm under Section

6105 at the time of his conviction of that offense in 1978.

In 1995, the Legislature amended Section 6105 to preclude persons

convicted of certain enumerated felonies, not all involving crimes of violence,

from possessing or using a firearm. The amendment provided, in relevant

part, as follows:

(a) Offense defined.—

(1) A person who has been convicted of an offense

enumerated in subjection (b), within or without this

Commonwealth, regardless of the length of sentence

. . . shall not possess, use, control, sell, transfer or

manufacture . . . a firearm in this Commonwealth.

****

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J-A15046-17

(b) Enumerated offenses.—The following offenses shall

apply to subsection (a): . . .

Section 3503 (relating to criminal trespass) if the

offense is graded a felony of the second degree or

higher.

Act of June 13, 1995, No. 1995-17 (SS1), § 2 (enacting 18 Pa.C.S. §

6105(a)(1), (b)), 1995 (SS1) Pa. Laws 1024, 1026, 1027-28. See

generally Commonwealth v. Gillespie, 821 A.2d 1221, 1224-25 (Pa.

2003) (discussing purpose of amendment). The relevant provisions of

Section 6105 have remained materially unchanged since that time.

The 1995 amendment to Section 6105 meant that if a person was

convicted of a second-degree felony for criminal trespass, that person was

not permitted to own a firearm. Because Grove was convicted of criminal

trespass in 1978 and because all criminal trespass convictions at that time

were second-degree felonies, Grove was forbidden from owning a gun under

the 1995 amendment. His ownership of a gun at the time he was charged

with animal cruelty in 2013 therefore resulted in a firearms charge against

him under this provision.

In his first claim, Grove argues that his trial counsel was ineffective for

conceding that his criminal trespass conviction in 1978 was an “enumerated

offense” that prohibited his gun ownership under Section 6105(b). Grove

emphasizes that when Section 6105 was amended in 1995 to include a

second-degree-felony criminal trespass as an enumerated offense, the only

type of criminal trespass that was graded as a second-degree felony was

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that which involved breaking into a building, conduct of which he was not

convicted. Grove argues that “the 1995 amendment [of Section 6105]

represents a clear legislative judgment that those, and only those, persons

convicted of criminal trespass in the form of breaking into a building should

be subject to prosecution for possessing a firearm under 18 Pa. C.S.

§ 6105.” Grove’s Brief at 43-44. He further argues that inclusion of his

1978 criminal trespass conviction as an “enumerated offense” under Section

6105 leads to an absurd result: a person who committed the same crime as

Grove (one not involving breaking into a building) after the criminal trespass

statute was amended would not be disqualified from possessing a firearm,

but Grove, due to the pre-amendment date of his trespass crime, would be.

The Commonwealth takes issue with Grove’s contention that his trial

counsel “conceded” this issue, noting that counsel raised a number of issues

regarding the impropriety of applying the 1995 amendment to Grove’s case.

See Commonwealth’s Brief at 33 (“Defendant’s precise claim in his first

argument is that Defendant’s criminal trespass conviction should not have

prohibited him from possessing a firearm — that claim was previously

argued by trial counsel, appellate counsel, and fully addressed and rejected

on the merits by the Pennsylvania Superior Court on direct appeal”). In his

direct appeal, Grove argued that application of the 1995 amendment to his

case would make that amendment unlawfully retroactive and would violate

constitutional prohibitions of ex post facto laws. See Grove, 1135 MDA

2014, at 10-13. In rejecting those arguments, we stated, “although Grove

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was convicted of criminal trespass 17 years before [Section 6105] was

amended, he committed the crime of persons not to possess firearms on

April 23, 2013, when he possessed a firearm despite his status as a

disqualified felon[;] . . . Grove's prior conviction was simply a condition

precedent to the present conviction.” Id. at 11-12. In reaching this

conclusion, we impliedly rejected the argument that Grove now makes

regarding the proper interpretation of Section 6105(b). We nevertheless

shall examine Grove’s statutory argument now because it is not the same as

the argument he previously made on direct appeal.

Grove’s “enumerated offense” argument raises a question of statutory

interpretation. This Court has explained:

When the question [is] one of statutory interpretation, our scope

of review is plenary and the standard of review is de novo.

Under the Statutory Construction Act of 1972, . . . our

paramount interpretative task is to give effect to the intent of

our General Assembly in enacting the particular legislation under

review. We are mindful that the object of all statutory

interpretation is to ascertain and effectuate the intention of the

General Assembly . . . and the best indication of the legislature’s

intent is the plain language of the statute. When the words of a

statute are clear and unambiguous, we may not go beyond the

plain meaning of the language of the statute under the pretext of

pursuing its spirit. However, only when the words of the statute

are ambiguous should a reviewing court seek to ascertain the

intent of the General Assembly through considerations of the

various factors found in Section 1921(c) of the [Statutory

Construction Act, 1 Pa. C.S. § 1921(c)].

In re D.M.W., 102 A.3d 492, 494 (Pa. Super. 2014) (quotation marks and

citations omitted); accord Commonwealth v. McFadden, 156 A.3d 299,

305-06 (Pa. Super. 2017).

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We conclude that the words of Section 6105 are clear and

unambiguous and that they do not support Grove’s argument. Section

6105(a) says that an individual may not possess a firearm if he “has been

convicted of an offense enumerated in subsection (b),” and Section 6105(b)

says that the “offenses [that] shall apply to subsection (a)” include “Section

3503 (relating to criminal trespass) if the offense is graded a felony of the

second degree or higher.” Grove was convicted of a criminal trespass under

Section 3503 that was graded as a felony of the second degree. Under the

plain wording of Section 6105, Grove therefore was not entitled to own a

gun.

To avoid this result, Grove asks us to interpret Section 6105(b) to

apply only to conduct that would result in conviction for a second-degree

felony today, rather than at the time the criminal trespass was committed.

But the statute does not contain that qualification. Section 6105 speaks of a

crime of which the defendant “has been convicted,” meaning that it looks to

the grading of the offense at the time it was committed. That Grove’s

criminal trespass would not be a second-degree felony if committed today

therefore is irrelevant under the statute; all that matters is that it was a

second-degree felony when Grove was convicted in 1978. We therefore

conclude, in an analysis of the statutory language similar to that we applied

- 25 -

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in Grove’s direct appeal, that Grove’s conviction of criminal trespass in 1978

disqualified him from possessing a firearm in 2013.19

We have found no Pennsylvania case law addressing this question, and

Grove has cited us to none. But a decision by the U.S. Supreme Court is on

point and, although not binding on this question of Pennsylvania law,

provides useful guidance. In McNeill v. United States, 563 U.S. 816

(2011), the Supreme Court interpreted the Armed Career Criminal Act, 18

U.S.C. § 924(e) (ACCA), which provides enhanced penalties for individuals

who have three previous convictions of “a violent felony or a serious drug

offense” under state law. One requirement for a “serious drug offense”

under state law is that “a maximum term of imprisonment of ten years or

____________________________________________

19

We reject Grove’s contention that the 1995 amendment evidences “a clear

legislative judgment” to bar gun ownership from “only those[] persons

convicted of criminal trespass in the form of breaking into a building.”

Grove’s Brief at 43-44. If that had been the Legislature’s intent, it would

have listed under Section 6105(b) only the part of Section 3503 dealing with

breaking into a building, Section 3503(a)(ii). Instead, Section 6105(b) lists

any criminal trespass graded as a second-degree felony, thus including

trespasses graded at that level prior to Section 3503’s amendment in 1978.

We also note that even though the pre-amendment version of Section 3503

did not made “breaking into” a building a separate type of criminal trespass,

the broad language of the pre-amendment statute, which made it a crime if

someone “enters” a building without permission, encompassed trespasses

committed by breaking into buildings. See Commonwealth v. Pellecchia,

925 A.2d 848, 849 (Pa. Super. 2007) (“it is axiomatic that an individual

cannot break into a building without actually gaining entry or, quite simply,

entering it”); cf. Commonwealth v. Lynch, 323 A.2d 808, 810 & n.2 (Pa.

Super. 1974) (entry of building by force was sufficient to prove unlawful

entry under predecessor to Section 3503). If, as Grove contends, the

Legislature had a special interest in barring such trespassers from gun

ownership, its drafting of Section 6105(b) to reach all those convicted under

the pre-amendment version of Section 3503 was the only way it could do so.

- 26 -

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more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Between 1991

and 1994, McNeill was convicted six times of drug trafficking offenses in

North Carolina. McNeill, 563 U.S. at 818. At the time of McNeill’s

convictions, the maximum penalty for each of his crimes was ten years’

incarceration. Id. However, on October 1, 1994, the North Carolina

legislature reduced the maximum penalties for those crimes to less than four

years. Id. In 2008, McNeill pleaded guilty to unlawful possession of a

firearm by a felon and was sentenced pursuant to the ACCA. Id. at 818-19.

McNeill challenged his ACCA sentence, claiming that because the legislature

had reduced the maximum penalty for drug trafficking, none of his prior

convictions could be considered a “serious drug offense.” Id.

The Supreme Court disagreed, and held that the amendment to the

North Carolina statute did not change the fact that McNeill had been

convicted of “serious drug offense[es]” between 1991 and 1994. McNeill,

563 U.S. at 820. The Court relied upon the plain language of the ACCA,

explaining that the only way to determine whether a defendant has a

“previous conviction” for a serious drug offense is to look at the maximum

sentence at the time of the conviction for the drug offense. Id.

The Court in McNeill also explained that its interpretation of the ACCA

“avoids the absurd results that would follow from consulting current state

law to define a previous offense.” McNeill, 563 U.S. at 822. For example,

consulting current law could lead to a prior conviction disappearing for

purposes of the ACCA if a state redefined the offense between the conviction

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and the federal sentencing. Id. at 823. “A defendant’s history of criminal

activity — and the culpability and dangerousness that such history

demonstrates — does not cease to exist when a State reformulates its

criminal statutes in a way that prevents precise translation of the old

conviction into the new statutes.” Id.

Here, the plain language of Section 6105, like the language of the

ACCA, focuses on the conviction, and requires us to examine the law in

effect at the time of Grove’s criminal trespass conviction to determine

whether it was a felony of the second degree. Cf. McNeill, 563 U.S. at 820.

There is no question that at the time Grove was convicted of criminal

trespass, his crime was a felony of the second degree. Thus, Grove had a

prior conviction for an enumerated offense. As the Court in McNeill

concluded, any other interpretation would lead to absurd results. See id. at

822-23. We therefore find Grove’s contention that he was not convicted of

an “enumerated offense” under Section 6105 to be meritless.

Because this issue is meritless, Grove’s trial counsel cannot be found

to have been ineffective for making this argument. Therefore, we agree with

the PCRA court that this claim warrants no relief. See Andrews, 158 A.3d

at 1263.

Equal Protection

Grove’s second claim is that his trial counsel was ineffective for failing

to raise an Equal Protection claim under the federal and Pennsylvania

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Constitutions. 20 Grove contends that the inclusion of criminal trespass

convictions prior to August 23, 1978, as “enumerated offenses” under the

1995 version of Section 6105 creates two groups subject to radically

different treatment. He asserts that individuals who (like Grove) committed

criminal trespass by “entering, gaining entry by subterfuge, or

surreptitiously remaining in a building” before the 1978 amendment to the

trespass statute (“Group I”) are prohibited from possessing a firearm under

Section 6105, but individuals who committed that same crime after the 1978

amendment (“Group II”) are not. Grove thus opines that Section 6105

discriminates against him and others similar situated. That discrimination,

he maintains, impacts his fundamental right to bear arms.21 He asserts that

there is no compelling governmental interest in treating the pre- and post-

1978 groups differently, and that even if a lesser standard applies, the

government has no rational basis for such disparate treatment.

The Commonwealth counters that Grove unsuccessfully litigated this

issue on direct appeal and thus is not entitled to relief. Commonwealth’s

____________________________________________

20

See U.S. Const. amend. XIV, § 1 (“No State shall . . . deny to any person

within its jurisdiction the equal protection of the laws”); Pa. Const. art. I,

§ 26 (“Neither the Commonwealth nor any political subdivision thereof shall

deny to any person the enjoyment of any civil right, nor discriminate against

any person in the exercise of any civil right”).

21

See U.S. Const. amend. II (“. . . the right of the people to keep and bear

Arms, shall not be infringed”); Pa Const. art. I, § 21 (“The right of the

citizens to bear arms in defense of themselves and the State shall not be

questioned”). In Grove’s direct appeal, we rejected an argument that his

conviction violated this right. See Grove, 1135 MDA 2014, at 23.

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Brief at 38-39. The Commonwealth construes Grove’s argument as an

assertion that Section 6105 improperly classifies people based on age. Id.

at 39. 22 Acting on that premise, the Commonwealth argues that Section

6105 did not create an “age classification” and suggests that, under Grove’s

argument, “any criminal statute could be subject to an equal protection

challenge” if a defendant “would face less harsh penalties had he committed

his crime in a different era.” Id. at 42 (emphasis in original).

We apply the following standard and scope of review:

Our Court exercises plenary review over questions of law,

including the constitutionality of a statute. Further, our Court

recognizes that the Equal Protection guarantee under the

Pennsylvania Constitution is analyzed under the same standards

as the federal constitution. When reviewing the constitutionality

of a statute, our Court has reaffirmed that:

there is a strong presumption in the law that legislative

enactments do not violate the constitution. Moreover,

there is a heavy burden of persuasion upon one who

challenges the constitutionality of a statute. While penal

statutes are to be strictly construed, the courts are not

required to give the words of a criminal statute their

narrowest meaning or disregard the evident legislative

intent of the statute. A statute, therefore, will only be

found unconstitutional if it “clearly, palpably and plainly”

violates the constitution.

All doubt is to be resolved in favor of sustaining the legislation.

____________________________________________

22

Focusing on “adult convictions,” Grove’s brief asserts that those in Group I

must have reached the age of 18 on or after the date that the criminal

trespass statute was amended, and are thus currently over the age of 56;

those in Group II are between the ages of 18 and 56. Grove’s Brief at 47-

48.

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Commonwealth v. Thomas, 51 A.3d 255, 256 (Pa. Super. 2012) (citations

and formatting omitted), appeal denied, 63 A.3d 1247 (Pa. 2013).

“The concept of equal protection requires that uniform treatment be

given to similarly situated parties.” Commonwealth v. Kramer, 378 A.2d

824, 826 (Pa. 1977).23 As our Supreme Court said in Curtis v. Kline, 666

A.2d 265 (Pa. 1995):

The right to equal protection under the law does not absolutely

prohibit the Commonwealth from classifying individuals for the

purpose of receiving different treatment, and does not require

equal treatment of people having different needs. The

prohibition against treating people differently under the law does

not preclude the Commonwealth from resorting to legislative

classifications, provided that those classifications are reasonable

rather than arbitrary and bear a reasonable relationship to the

object of the legislation. In other words, a classification must

rest upon some ground of difference which justifies the

classification and has a fair and substantial relationship to the

object of the legislation.

Id. at 267-68 (citations omitted). Generally, there are two types of equal

protection claims: (1) that the law itself is discriminatory; and (2) that the

law itself does not discriminate, but is enforced in a discriminatory manner.

See Commonwealth v. Lewis, 279 A.2d 26, 29 (Pa.), cert. denied, 404

U.S. 1003 (1971).

____________________________________________

23

See Commonwealth v. Bullock, 913 A.2d 207, 215 (Pa. 2006) (“While

the Equal Protection Clause assures that all similarly situated persons are

treated alike, it does not obligate the government to treat all persons

identically”), cert. denied, 550 U.S. 941 (2007); Chem v. Horn, 725 A.2d

226, 228 (Pa. Cmwlth. 1999) (“In order to properly state an equal protection

claim, a plaintiff must allege that he is receiving different treatment from

that received by other similarly situated individuals” (citation omitted)).

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There is nothing about Section 6105 that in itself is discriminatory for

purposes of the first type of equal protection claims. For this type of claim,

“before we analyze a statute to determine whether it violates equal

protection principles, we must first ask a threshold question[:]” whether the

statute at issue “has created a classification for the unequal distribution of

benefits or imposition of burdens.” Commonwealth v. Parker White

Metal Co., 515 A.2d 1358, 1363 (Pa. 1986) (emphasis in original and

citation omitted) (rejecting equal protection claim because the provisions at

issue “on their face, apply equally and across the board to any and all

potential violators of the substantive provisions of the Act”); accord

Commonwealth v. Barud, 681 A.2d 162, 166 n.5 (Pa. 1996).

The mere fact that Section 6105 has been amended to change the

disqualifying enumerated offenses under it does not in itself give rise to such

an unlawful classification. The Supreme Court’s decision in Kramer is

instructive. The defendant in that case committed voluntary manslaughter

in 1967, when there was no statute of limitations for voluntary

manslaughter. Kramer, 378 A.2d at 825-26. On June 6, 1973, a new

version of the statute became effective which provided for a two-year

statute of limitations for voluntary manslaughter. Id. at 826. Kramer was

indicted in 1974. Id. at 825. He argued that subjecting him to the law in

effect in 1967 denied him equal protection under the Pennsylvania and

federal constitutions. Id. at 826. The Supreme Court of Pennsylvania

disagreed, stating, “we can find no violation of equal protection, as all

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individuals committing the act of voluntary manslaughter before June 6,

1973, were subjected to no statute of limitations, while all individuals

committing the same act after that date must be charged within two years.”

Id.

Here, too, nothing in the amendment to Section 6105 has created any

unlawful classification — both before and after its amendment, Section 6105

applies across the board to any and all violators: a person convicted of an

enumerated offense shall not possess a firearm. On this basis alone,

Grove’s discriminatory-law claim fails. See Parker White Metal Co., 515

A.2d at 1363. Conversely, the statute does not “carve out classifications or

single out any distinct class of persons for unequal treatment, but by its

terms applies equally to all” persons convicted of, among other offenses,

criminal trespass. See id. ; Kramer, 378 A.2d at 826.

With respect to the second type of equal protection claim, a claim for

discriminatory enforcement:

In order to state an equal protection claim for unequal or

discriminatory enforcement the party claiming such

discrimination must show that persons similarly situated have

not been treated the same and that the decisions were made on

the basis of an unjustifiable standard such as race, religion, or

other arbitrary classification or to prevent the party’s exercise of

a fundamental right.

Correll v. Commonwealth of Pa., Dep’t of Transp., Bureau of Driver

Licensing, 726 A.2d 427, 431 (Pa. Cmwlth. 1999) (en banc) (citations,

brackets, and quotation marks omitted), aff’d, 769 A.2d 442 (Pa. 2001)

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(per curiam). Furthermore, the discrimination must be “purposeful or

intentional.” Lewis, 279 A.2d at 29.24

Grove cannot succeed on a claim that Section 6105 has been enforced

in a discriminatory fashion. He has adduced no evidence that the

Commonwealth purposefully or intentionally treated others in his situation

differently, that is, that a person who, like Grove, was convicted of criminal

trespass before the 1978 amendment was given the benefit of the post-1978

trespass statute. Grove argues that the change in the criminal trespass law

in 1978 created two groups of felons who, under the 1995 amendment to

Section 6105, have different privileges of gun ownership, and observes that,

because that change occurred nearly 40 years ago, the group that is more

disadvantaged (“Group I” in the preceding discussion) is considerably older

than the group (“Group II”) that is less disadvantaged. But that does not

mean there was unlawful age discrimination. Any time a statute is

amended, those affected by the earlier, pre-amendment version will tend to

be older than those affected by the new amendment. That is merely the

natural result of the enactment of laws, and cannot be construed as

purposeful or intentional discrimination against the older group. See

generally Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 505 (1911)

____________________________________________

24

See also Goodman v. Kennedy, 329 A.2d 224, 232 (Pa. 1974)

(concluding that although the record established a lack of uniform

enforcement of the law at issue, it did not “establish that the lack of

uniformity was the result of purposeful discrimination aimed at a particular

class of which the appellants were members”).

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(“the 14th Amendment does not forbid statutes and statutory changes to

have a beginning, and thus to discriminate between the rights of an earlier

and later time”).25

Nor is there any basis for a claim that the statutory amendment

discriminates to prevent exercise of a fundamental right. In recognizing the

constitutional right to bear arms in District of Columbia v. Heller, 554

U.S. 570, 626-27 (2008), the U.S. Supreme Court “made clear that the right

to keep and bear arms pursuant to the Second Amendment is not absolute,

and that ‘nothing in our opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons . . . .’”

Commonwealth v. McKown, 79 A.3d 678, 688 (Pa. Super. 2013) (quoting

Heller), appeal denied, 91 A.3d 162 (Pa. 2014); see also McDonald v.

City of Chicago, 561 U.S. 742, 786 (2010). The Pennsylvania Constitution

has been interpreted similarly. See McKown, 79 A.3d at 690. In Grove’s

____________________________________________

25

See also Rondon v. State, 711 N.E.2d 506, 513 (Ind. 1999) (“Criminal

statutes apply exclusively to one class of people, those who violate the law,

and they relate to the specific point in time that a violation occurs. Upon

alteration of the criminal law, individuals subsequently convicted are not

similarly situated and cannot be equated to those previously convicted.”

(citation and footnote omitted)); State v. Rush, 406 S.E.2d 355, 356 (S.C.

1991) (per curiam) (explaining that logical conclusion of argument that

statutory amendment violated equal protection “would be that once the

Legislature had enacted a statute, it could never amend or repeal it without

running afoul of the equal protection clause[]”); Abdo v. Commonwealth,

237 S.E.2d 900, 903-04 (Va. 1977) (“The fact that the legislature reduces

the penalty for a crime after a prisoner is sentenced, and he does not benefit

from that mitigation of punishment, does not constitute an arbitrary

classification or deny the prisoner equal protection of the law”).

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J-A15046-17

direct appeal, we rejected his contention that Section 6105’s prohibition of

gun ownership by him violated his right to bear arms. See Grove, 1135

MDA 2014, at 23. Grove’s recasting of that argument under the Equal

Protection Clause cannot salvage it.

The 1995 amendment to Section 6105 was intended to broaden the

class of convicted felons who would not be entitled to possess a firearm.

Gillespie, 821 A.2d at 1224-25. Though that expansion restricted the gun-

ownership rights of more felons than had previously been burdened, there

was nothing irrational or invidious about the Legislature’s purpose. As the

Pennsylvania Supreme Court stated when reviewing the constitutionality of a

similar federal firearms statute:

Prohibiting convicted felons from buying firearms is rationally

connected to the remedial goal of protecting the public from the

risk of firearms in the hands of convicted criminals. Appellant

stresses his crime was relatively minor and non-violent, and

contends the disability imposed by [the federal statute] is not

rationally connected to a non-punitive purpose because it is

unduly harsh. While Congress could have cast the net less widely

than it did in selecting the crimes that would trigger the

disability imposed . . .[, t]he legislature need not choose the

most narrowly tailored means available when crafting a remedial

statute, and preventing felons from purchasing firearms is

rationally connected to a non-punitive purpose.

Lehman v. Pa. State Police, 839 A.2d 265, 273 (Pa. 2003). Although the

Court in Lehman was not there dealing with an equal protection issue, its

sentiments are directly applicable here. The fact that the 1995 amendment,

in conjunction with the 1978 amendment to the criminal trespass law,

affects felons like Grove more substantially than it affects others does not

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mean that it is invalid. The statutory change was made for a rational

purpose.

Moreover, even if Grove’s invocation of his constitutional self-defense

rights would require us to employ a more substantial level of scrutiny than

the rational basis test, we conclude that the change in the law satisfies a

sufficient government interest to withstand equal protection scrutiny. See

McKown, 79 A.3d at 689-91 (applying intermediate scrutiny and concluding

that the statute at issue served the important government interest of

protecting the public from persons who should not carry firearms and was

substantially related to the achievement of that objective). We have no

doubt that the statutory amendment was valid.

For these reasons, Grove’s equal protection claim, whether grounded

in the statute itself or in its enforcement, lacks merit. Grove therefore

cannot succeed on his claim that his counsel was ineffective in raising this

issue, and, accordingly, we agree with the PCRA court that it did not err in

denying relief. See Andrews, 158 A.3d at 1263.

Affirmative Defense under Section 6105(a)(2)(i)

Next, Grove asserts that his trial counsel was ineffective for not

presenting the affirmative defense set forth at 18 Pa.C.S. § 6105(a)(2)(i):

A person who is prohibited from possessing, using, controlling,

selling, transferring or manufacturing a firearm . . . shall have a

reasonable period of time, not to exceed 60 days from the date

of the imposition of the disability under this subsection, in which

to sell or transfer that person’s firearms to another eligible

person who is not a member of the prohibited person’s

household.

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Grove argues that he qualifies for this defense because he lacked a

reasonable opportunity to sell or transfer his firearms. Grove contends that

when Section 6105 was amended in 1995 to add criminal trespass as an

enumerated offense, he was not “subjectively aware” that he was no longer

permitted to possess firearms and therefore “had no opportunity whatsoever

to avail himself of the statutory affirmative defense.” Grove’s Brief at 53.

Grove argues in the alternative that “‘the date of the imposition of the

disability’ is the date on which a judgment of conviction is entered for an

enumerated offense.” Grove’s Brief at 53. When Grove was convicted of

criminal trespass in 1978, his conviction was not an enumerated offense.

Therefore, Grove argues that there is no date of imposition of the disability,

and he did not have a reasonable time after the imposition of the disability

to dispose of his firearms. Id.

This Court has held that Section 6105(a)(2)(i) provides an affirmative

defense for “persons who were disqualified from gun possession/control by

[18 Pa.C.S. § 6105(a)(1)] but who did not yet have a reasonable

opportunity to dispose of their firearms.” Commonwealth v. Alvarez-

Herrera, 35 A.3d 1216, 1218 (Pa. Super. 2011). We have also held that,

for purposes of Section 6105(a)(2)(i), the date of imposition of the disability

is the date of conviction of an enumerated offense. See Commonwealth v.

Appleby, 856 A.2d 191, 194 (Pa. Super. 2004).

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Here, as Grove points out, the date of his conviction for criminal

trespass could not be “the date of the imposition of the disability” because

Grove was not prohibited from possessing firearms until 1995. However, it

does not follow, as Grove contends, that there was never a date of

imposition of disability. Rather, as we stated in Grove’s direct appeal, that

date is the date that his previous conviction became an enumerated offense.

See Grove, 1135 MDA 2014, at 9 (“as of the effective date of the [1995]

amendment [to § 6105], Grove was prohibited from owning or possessing a

firearm”). Grove had sixty days from October 11, 1995,26 to sell or transfer

any guns that he owned. He did not do so, and thus the Section

6105(a)(2)(i) defense was not available to him.

We previously rejected Grove’s argument that he was entitled to notice

when Section 6105 was amended in 1995. See Grove, 1135 MDA 2014, at

22-23 (“ignorance of the law is not a defense”). We therefore are

unpersuaded by Grove’s argument that he did not have a reasonable time to

dispose of his guns because he did not know he was prohibited from

possessing them.

Because Grove’s underlying claim regarding the Section 6105(a)(2)(i)

defense is meritless, we agree with the PCRA court that Grove is not entitled

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26

The amendment was enacted on June 13, 1995, and effective 120 days

later (October 11, 1995).

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

this defense. Andrews, 158 A.3d at 1263.

Ex Parte Communications (Grove’s Claim IV)

In his final claim, Grove contends that the PCRA court erred by failing

to hold an evidentiary hearing on his claim that his right to an impartial

tribunal had been violated due to alleged ex parte communications between

Judge Lunsford and members of the District Attorney’s Office. Grove asserts

that his “belief that his case may have been compromised by ex parte

communications was well-founded,” and that, had he been given the

opportunity to prove the existence of ex parte communications, he would be

entitled to automatic reversal of his convictions, without proving prejudice.

Grove’s Brief at 62.

In fact, the PCRA court held several evidentiary hearings. Grove’s

claim thus appears to be that the PCRA court should have allowed additional

testimony before ruling on his claim regarding ex parte communications.

However —

[T]he right to an evidentiary hearing on a post-conviction

petition is not absolute. It is within the PCRA court’s discretion

to decline to hold a hearing if the petitioner’s claim is patently

frivolous and has no support either in the record or other

evidence. It is the responsibility of the reviewing court on

appeal to examine each issue raised in the PCRA petition in light

of the record certified before it in order to determine if the PCRA

court erred in its determination that there were no genuine

issues of material fact in controversy and in denying relief

without conducting an evidentiary hearing.

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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted). “[A]n evidentiary hearing is not meant to function as a fishing

expedition for any possible evidence that may support some speculative

claim . . . .” Commonwealth v. Roney, 79 A.3d 595, 605 (Pa. 2013)

(quotation marks and citations omitted), cert. denied, 135 S. Ct. 56

(2014).

This Court has held that ex parte communications require the grant of

a new trial only where there is evidence that the trial court judge was

influenced by those communications. Commonwealth v. Barnyak, 639

A.2d 40, 44 (Pa. Super.) (“even if the ex parte communications were

improper, in the absence of evidence of influence, there is no basis for the

grant of a new trial”), appeal denied, 652 A.2d 1319 (Pa. 1994), cert.

denied, 515 U.S. 1130 (1995); see also Commonwealth v. Carpenter,

725 A.2d 154, 169 n.9 (Pa. 1999) (citing Barnyak)).27

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27

Grove cites a number of cases from other jurisdictions where courts have

held that the existence of ex parte communications requires automatic

reversal without any showing of prejudice. These cases are not binding on

this Court. Moreover, they are factually distinguishable from this case. See

United States v. Barnwell, 477 F.3d 844, 847-49 (6th Cir. 2007)

(detailing numerous ex parte communications regarding jury deliberations);

Smith v. State, 708 So.2d 253, 255 (Fla. 1998) (holding impartiality of

tribunal was compromised where, in ex parte communication, prosecutor

persuaded judge to change his mind about an order); Abdygapparova v.

State, 243 S.W.3d 191, 210 (Tex. Ct. App. 2007) (holding that content of

ex parte communications, combined with judge’s comments about the

defendant, admission of improper evidence, and denial of the defendant’s

request for an interpreter demonstrated that “the absence of an impartial

judge infected the entire trial process”).

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Instantly, the PCRA court concluded that Grove’s claim regarding ex

parte communications “involve[d] only the effect of the alleged ex parte

contacts on [Grove’s] sentences” and became moot in light of its grant of

sentencing relief for Grove’s claim regarding his prior record score. PCRA Ct.

Op. at 1. The court reached this conclusion because: “With respect to the

firearms charge, there were no factual issues in dispute and no evidentiary

rulings beyond the constitutional issues presented to the trial [c]ourt. With

respect to the Cruelty to Animals charge, [Grove] entered a guilty plea.” Id.

Upon a careful review of the record, we agree.

In his PCRA petition, Grove did not explain how the alleged ex parte

communications affected any of Judge Lunsford’s rulings, with the possible

exception of his sentencing. In his appellate brief, Grove discusses ex parte

communications relating to imposition of a “maximum” sentence, Grove’s

Brief at 62, but he does not identify issues relating to his conviction that

might have been affected by such communications.28 Indeed, in responding

to the Commonwealth’s appeal of the PCRA court’s order permitting

discovery pertaining to alleged ex parte communications, Grove argued that

the PCRA court’s grant of sentencing relief rendered the Commonwealth’s

appeal of that issue moot. The legal rulings made by Judge Lunsford in

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28

Grove does make an argument about his request for bail and a furlough

for a medical condition. Grove’s Brief at 62. Those matters do not relate to

his conviction, and, in any event, Grove has now been released from

incarceration on his own recognizance. Trial Ct. Order, Jan. 25, 2017, ¶ 5.

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connection with his firearms conviction were affirmed by this Court on

Grove’s direct appeal, and, as the PCRA court noted, the factual issues were

undisputed. On these facts, the trial court was not required to explore this

issue further, since there was no prospect that it would result in a new trial.

Grove was not entitled to unlimited hearings to prove his speculative claims.

See Roney, 79 A.3d at 605.

Thus, we agree with the PCRA court’s conclusion that, at most, the

alleged ex parte communications could have affected Grove’s sentencing,

and in light of the PCRA court’s grant of a new sentencing hearing on other

grounds, the ex parte communications claim was moot. Grove therefore is

entitled to no further relief on this issue.

For all these reasons, we discern no error of law by the PCRA court in

denying Grove’s petition in part, and we therefore affirm the order below.

See Andrews, 158 A.3d at 1263.

Order affirmed. Application for consolidation dismissed as moot with

regard to Nos. 358 MDA 2017 and 1158 MDA 2017, and denied with regard

to Commonwealth v. McClure, 145 MDA 2017.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2017

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