J-S58013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID LEE GROVER, JR.,

Appellant No. 622 MDA 2015

Appeal from the PCRA Order January 21, 2015

in the Court of Common Pleas of Huntingdon County

Criminal Division at No.: CP-31-CR-0000054-2010

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 24, 2015

Appellant, David Lee Grover, Jr., appeals nunc pro tunc from the order 

denying his first petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Because Appellant’s claims allege trial and appellate counsel 

ineffectiveness, we will provide a brief recitation of the pertinent facts, which 

we take from this Court’s April 9, 2012 memorandum opinion. 

[B]etween August[] 2009[] and December[] 2009, 

Appellant and B.P. were engaged in a sexual relationship. 

Appellant was [39 years old and] [B.P.] was [15 years old when 

the relationship began].

* * *

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S58013-15

- 2 -

[B.P.] testified that sexual things started to happen 

between her and Appellant in August[] 2009. [B.P.] was clear 

she wanted them to happen as she loved Appellant. . . . [B.P.] 

testified that she and Appellant had sexual intercourse five (5) 

times before her sixteenth (16th) birthday[, but] was very 

unclear with respect to dates, days, and times. . . .

Trooper Charles Aungst, a sixteen (16) year state police 

veteran, testified he opened an investigation in early January[] 

2010. After interviewing [B.P.] and her mother on January 9, 

2010, he unsuccessfully called Appellant. Later that same day, 

[Appellant] returned the call and arrangements were made to 

meet the following day at the state police barracks.

The next day Appellant appeared at the barracks. 

[Appellant] was told what the allegations were that prompted 

the interview. He was also told he was free to leave. Trooper 

Aungst testified that he read to [Appellant] a form headed 

“Pennsylvania Noncustodial Written Statement”, and that 

[Appellant] placed appropriate checkmarks on the form and 

initialed his answers. Thereafter, [Trooper Aungst] asked

Appellant a series of forty-eight (48) questions. He kept notes 

as to each question as well as [Appellant’s] answers. After the 

questioning was completed, Trooper Aungst allowed Appellant to 

leave.

(Commonwealth v. Grover, No. 998 MDA 2011, unpublished

memorandum at *1-*3 (Pa. Super. filed Apr. 9, 2012)) (citing Trial Court 

Opinion, 7/18/11, at 2-5). 

On January 12, 2011, a jury convicted Appellant of involuntary deviate 

sexual intercourse, statutory sexual assault, aggravated indecent assault, 

corruption of minors, and indecent assault.1 On May 19, 2011, the court 

sentenced Appellant to an aggregate term of incarceration of not less than 

____________________________________________

1 18 Pa.C.S.A. §§ 3123(a)(7), 3122.1, 3125(a)(8), 6301(a)(1), and 

3126(a)(8), respectively.
J-S58013-15

- 3 -

ten nor more than twenty years. Appellant filed a timely appeal, and this 

Court affirmed his judgment of sentence on April 9, 2012. (See id. at *18). 

Appellant did not file a petition for allowance of appeal with our Supreme 

Court. 

On October 22, 2012, Appellant filed a pro se first PCRA petition. 

Appointed PCRA counsel filed an amended petition on December 19, 2012. 

The court held a hearing on October 3, 2014. After the parties filed 

proposed findings of fact, the PCRA court denied the petition on January 21, 

2015. On March 2, 2015, Appellant filed a motion to file an appeal nunc pro 

tunc, which the court granted. Appellant timely appealed.2

Appellant purports to raise one vague issue for our review: “Whether 

the PCRA court erred in dismissing the PCRA [p]etition filed by [Appellant]?” 

(Appellant’s Brief, at 7). However, in fact, he raises five separate claims of 

ineffectiveness of counsel. Specifically, he maintains that counsel failed to: 

(1) call proposed witnesses; (2) introduce certain evidence; (3) advise the 

trial court of juror misconduct; (4) object to the trial court’s answer to a jury 

question; and (5) file for an allowance of appeal with the Pennsylvania 

Supreme Court. (See id. at 12-17). We will treat each of these allegations 

as a separate issue.

____________________________________________

2 Appellant filed a timely Rule 1925(b) statement on April 30, 2015 pursuant 

to the PCRA court’s order. See Pa.R.A.P. 1925(b). The PCRA court filed a 

Rule 1925(a) opinion on May 19, 2015. See Pa.R.A.P. 1925(a).
J-S58013-15

- 4 -

Preliminarily, we observe that, other than initial citations to boilerplate 

law, (see id. at 11-12), in the argument section, Appellant provides no 

pertinent legal citation in support of each of his individual arguments, 

particularly as they apply to the Pierce prongs. (See id. at 15-18); see 

also Pa.R.A.P. 2119(a), (b); Commonwealth v. Pierce, 527 A.2d 973, 976 

(Pa. 1987). Instead, the argument section of his brief contains recitations of 

the facts in the light most favorable to him, and conclusory statements 

without any well-developed discussion, in violation of Pennsylvania Rule of 

Appellate Procedure 2119(a) and (b). See Pa.R.A.P. 2119(a), (b). 

Therefore, Appellant’s claims are waived. See Commonwealth v. 

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007), appeal denied, 982 A.2d 

509 (Pa. 2007) (“We shall not develop an argument for [the appellant], nor 

shall we scour the record to find evidence to support an argument; 

consequently, we deem this issue waived.”). 

Moreover, Appellant’s issues would not merit relief. Our standard of 

review of appeals from PCRA court decisions is well-settled:

This Court analyzes PCRA appeals “in the light most 

favorable to the prevailing party at the PCRA level.” 

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 

2012[, appeal denied, 64 A.3d 631 (Pa. 2013)]. Our “review is 

limited to the findings of the PCRA court and the evidence of 

record” and we do not “disturb a PCRA court’s ruling if it is 

supported by evidence of record and is free of legal error.” Id. 

Similarly, “[w]e grant great deference to the factual findings of 

the PCRA court and will not disturb those findings unless they 

have no support in the record. However, we afford no such 

deference to its legal conclusions.” Id. (citations omitted). 
J-S58013-15

- 5 -

“[W]here the petitioner raises questions of law, our standard of 

review is de novo and our scope of review is plenary. . . .” Id.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014). Further, 

“[t]he PCRA court’s credibility determinations, when supported by the 

record, are binding on this Court.” Commonwealth v. Spotz, 18 A.3d 244, 

259 (Pa. 2011) (citation omitted).

As stated previously, Appellant asserts five claims of counsel’s 

ineffectiveness. (See Appellant’s Brief, at 12-17).

[T]o succeed on an ineffectiveness claim, a petitioner must 

demonstrate that: the underlying claim is of arguable merit; 

counsel had no reasonable basis for the act or omission in 

question; and he suffered prejudice as a result, i.e., there is a 

reasonable probability that, but for counsel’s error, the outcome 

of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome of the proceeding. 

Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations 

omitted); see also Pierce, supra at 976. “Counsel’s assistance is deemed 

constitutionally effective once this Court determines that the defendant has 

not established any one of the prongs of the ineffectiveness test.” 

Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citation 

and emphasis omitted).

Here, Appellant’s first allegation of trial counsel ineffectiveness 

maintains that counsel “fail[ed] to call the witnesses [Appellant] gave to him 

in their pretrial meetings.” (Appellant’s Brief, at 12). Specifically, Appellant 

maintains that trial counsel erred in failing to call B.P.’s grandmother, S.H., 
J-S58013-15

- 6 -

her Juniata Valley band camp director, her friend, C.B., and C.B.’s mother, 

D.B., as witnesses at trial. (See id. at 12-14). Appellant’s claim would not 

merit relief.

When raising a claim of ineffectiveness for the failure to 

call a potential witness, a petitioner [must establish] that: (1) 

the witness existed; (2) the witness was available to testify for 

the defense; (3) counsel knew of, or should have known of, the 

existence of the witness; (4) the witness was willing to testify for 

the defense; and (5) the absence of the testimony of the witness 

was so prejudicial as to have denied the defendant a fair trial. 

To demonstrate . . . prejudice, a petitioner must show how the 

uncalled witnesses’ testimony would have been beneficial under 

the circumstances of the case. Thus, counsel will not be found 

ineffective for failing to call a witness unless the petitioner can 

show that the witness’s testimony would have been helpful to 

the defense. A failure to call a witness is not per se ineffective 

assistance of counsel for such decision usually involves matters 

of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations 

and quotation marks omitted).

We first review Appellant’s argument as to S.H. and the band camp 

director. Appellant claims that B.P. was out of state with S.H., and at the 

Juniata Valley band camp, during part of August 2009, and that the 

grandmother and the band camp director would have testified to that fact. 

(See Appellant’s Brief, at 13-14). 

However, Appellant does not argue that these individuals were 

available and willing to testify for the defense, or that the absence of this 

testimony “was so prejudicial as to have denied [him] a fair trial.” Sneed, 

supra at 1109. In fact, the PCRA court observed that S.H. did not testify at 
J-S58013-15

- 7 -

the PCRA hearing and “even if [she] testified [at trial] as advertised, the 

relevance of the testimony would have been minimal given that B.P. did not 

testify as to the dates and times of her sexual encounters with [Appellant].” 

(PCRA Court Opinion, 5/19/15, at 5). Further, trial counsel testified at the 

PCRA hearing that Appellant never identified S.H. as a potential witness. 

(See N.T. PCRA Hearing, 10/03/14, at 5). 

Additionally, counsel stated that he did not call the band camp director 

as a witness because B.P. had not testified about specific dates of the sexual 

activity, and therefore it would not have been worth it. (See id. at 6). In 

addition, he testified that, although he did not call the camp director, he 

cross-examined B.P. at trial about the band camp issue. (See id.; see also 

N.T. Trial, 1/12/11, at 58-59). 

Therefore, based on the foregoing, Appellant’s claim of trial counsel 

ineffectiveness for not calling S.H. and the band director as witnesses would 

lack merit, even if not waived, where he failed to prove that the witnesses 

were available and willing to testify, that counsel knew of their existence, 

and that “the absence of the testimony . . . was so prejudicial as to have 

denied [Appellant] a fair trial.” Sneed, supra at 1109; see also Laird, 

supra at 978; Rolan, supra at 406.

We next address Appellant’s claim as it relates to C.B. and D.B. (See

Appellant’s Brief, at 13-14). 
J-S58013-15

- 8 -

At the PCRA hearing, Appellant testified that he told counsel about 

B.P.’s friend, C.B., and that she could testify that she spent several 

overnights at his house, and he never made any sexual advances toward 

her. (See N.T. PCRA Hearing, at 32). Appellant stated that he told counsel 

that he wanted D.B. to testify because “she obviously . . . felt comfortable 

enough for her daughter to spend time at [his] house. She had no worries 

either of something like that happening.” (Id. at 32-33). However, counsel

testified that Appellant did not mention either C.B. or D.B. to him as 

potential witnesses, and the individuals did not appear at the PCRA hearing. 

(See id. at 3, 7). 

After our independent review of the record, we conclude that Appellant 

failed to establish that counsel knew of, or should have known, about C.B. 

and D.B., that they were available and willing to testify on his behalf, or that 

“the absence of [their] testimony . . . was so prejudicial as to have denied 

[him] a fair trial.” Sneed, supra at 1109. 

Therefore, in sum, Appellant failed to meet his burden of proving trial 

counsel’s ineffectiveness for not calling S.H., the band camp director, C.B. 

and D.B. as witnesses. See Sneed, supra at 1108-09; see also Laird, 

supra at 978; Rolan, supra at 406. Accordingly, Appellant’s first issue 

would not merit relief. 

In his second claim, Appellant maintains that trial counsel was 

ineffective for failing to present evidence of B.P.’s alleged sexually 
J-S58013-15

- 9 -

transmitted disease (STD), which he and his wife do not have. (See 

Appellant’s Brief, at 14). He argues that “[t]his evidence would have 

established that [he] could not have performed the alleged acts in 

question[]” and “was relevant . . . to attack the credibility of the alleged 

victim.” (Id.) (citing Commonwealth v. Fink, 791 A.2d 1235, 1241 (Pa. 

Super. 2002).3 Appellant’s claim would not merit relief.

At the PCRA hearing, counsel testified that he had no recollection of a 

conversation with Appellant about B.P.’s alleged STD.4 (See N.T. PCRA 

Hearing, at 8). Therefore, because counsel had a reasonable basis for not 

presenting the evidence where he was not aware of it, and Appellant fails to 

prove that, but for the omission of this alleged evidence, the outcome of the 

trial would have been different, see Laird, supra at 978, we conclude that 

the record supports the PCRA court’s finding that Appellant failed to prove 

____________________________________________

3 Although we already observed that Appellant waived all of his issues, we 

note that his paltry six sentence long “argument” does cite to Fink in 

support of his allegation that “[t]he evidence was relevant . . . to attack the 

credibility of [B.P.].” (Appellant’s Brief, at 14). However, he does not 

provide any pertinent discussion or caselaw regarding Fink’s applicability to 

this case, or about his specific allegation regarding the admissibility of 

evidence of a victim’s alleged STD. (See id.); see also Pa.R.A.P. 2119(a), 

(b).

4 Counsel further maintained that, even if he knew about the evidence, and 

it was true, it probably would have been inadmissible under the Rape Shield 

Law, 18 Pa.C.S.A. § 3104. (See N.T. PCRA Hearing, at 8). However, 

because of our disposition, we need not discuss the accuracy of this 

statement.
J-S58013-15

- 10 -

counsel’s ineffectiveness for not introducing evidence of B.P.’s alleged STD. 

See Laird, supra at 978; Rolan, supra at 406. Appellant’s second issue 

would lack merit.

In his third claim, Appellant maintains that “[t]rial counsel was 

ineffective for failing to advise the trial court that one of the jurors [had] 

been overheard on the telephone saying his mind was made up that 

[Appellant] was guilty and they would be home soon . . . .” (Appellant’s 

Brief, at 14). Appellant’s issue, in addition to being waived for failing to 

provide pertinent citation and discussion, would not merit relief. 

At the PCRA hearing, counsel unequivocally stated that neither 

Appellant nor his wife alerted him to alleged juror misconduct. (See N.T. 

PCRA Hearing, at 9). Counsel expressly testified that, had he been told of 

anything of that nature, he immediately would have informed the trial court. 

(See id.).

The PCRA court found counsel’s testimony credible in part based on its 

own prior experience with him. (See PCRA Ct. Op., at 8-9). We cannot 

overrule this credibility finding. See Spotz, supra at 259. Accordingly, 

because he failed to plead and prove that counsel even knew about the 

alleged juror misconduct, Appellant’s third issue, even if not waived, would 

not merit relief. See Laird, supra at 978; Rolan, supra at 406.

In his fourth claim, Appellant maintains that trial counsel was 

ineffective for failing to object to the trial court’s response to a jury question 
J-S58013-15

- 11 -

during deliberations about the import of his signature on the non-custodial 

rights waiver form. (See Appellant’s Brief, at 15-16). This allegation would 

not merit relief.

In Appellant’s direct appeal, this Court addressed the issue of whether 

“the trial court erred when it refused to charge the jury that Appellant’s 

signature on the noncustodial rights waiver form was not a verification of the 

answers Appellant gave to Trooper Aungst on January 10, 2010.” (Grover, 

supra at *15). Although this Court found waiver for counsel’s failure to 

object, it addressed the merits of the claim and it concluded that Appellant 

was not entitled to relief. (See id. at *17-*18). 

Therefore, Appellant’s claim that trial counsel was ineffective for failing 

to object to the trial court’s answer to the jury question would fail where the 

underlying claim has been previously litigated, and found to lack merit. See 

Laird, supra at 978; Rolan, supra at 406. Hence, Appellant’s fourth claim 

would not merit relief.

In his fifth issue, Appellant argues that counsel was ineffective for 

failing to file a petition for allowance of appeal with the Pennsylvania 

Supreme Court. (See Appellant’s Brief, at 16). This allegation would not 

merit relief.

It is well-settled that “the unjustified failure to file a requested direct 

appeal is ineffective assistance of counsel per se and that an appellant need 

not show that he likely would have succeeded on appeal in order to meet the 
J-S58013-15

- 12 -

prejudice prong of the test for ineffectiveness.” Commonwealth v. Bath, 

907 A.2d 619, 622 (Pa. Super. 2006), appeal denied, 918 A.2d 741 (Pa. 

2009) (citation omitted). 

However,

. . . [b]efore a court will find ineffectiveness of counsel for 

failing to file a direct appeal, the defendant must prove that he 

requested an appeal and that counsel disregarded that request. 

Clearly, if a request to file a direct appeal is necessary to sustain 

an ineffectiveness claim based upon the failure to file a direct 

appeal, then such a request is also necessary where the alleged 

ineffectiveness is the failure to file a petition for allowance of 

appeal.

Id. (citations and quotation marks omitted).

In this case, the PCRA court found that “it is far from clear that 

[Appellant] established a basis for relief.” (PCRA Ct. Op., at 13). More 

specifically, the court stated “[w]hat [was not] established by a 

preponderance of the evidence was that [Appellant’s] desire that a [petition 

for allowance of appeal] be filed was communicated to [counsel].” (Id.). 

The record supports the trial court’s finding.

At the PCRA hearing, counsel testified that he immediately notified 

Appellant when this Court denied his direct appeal. (See N.T. PCRA

Hearing, at 14). Counsel told Appellant that he had the right to file a 

petition for allowance of appeal with the Pennsylvania Supreme Court, either 

with him or other retained counsel, but that he required a $2,000.00 

retainer before he could move forward. (See id.). He spoke to Appellant’s 

wife one time, and told her to contact him about the deposit and filing a 
J-S58013-15

- 13 -

petition if Appellant wanted to go ahead with an appeal. (See id.). When 

asked what he would do if he “received notice from [Appellant] that he 

wanted to petition for allowance of appeal but he did not have the 

appropriate funds,” counsel responded that he would have been required to 

file the petition. (Id. at 22). However, he did not do so because, not only 

did he not receive the $2,000.00 payment, neither Appellant nor his wife 

called his office and told him to file the petition. (See id. at 14-15).

Based on the foregoing, we conclude that Appellant has failed to meet 

his burden of proving, by a preponderance of the evidence, that his 

underlying claim, that he told counsel to file a petition for allowance of 

appeal and counsel failed to do so, has merit. See Bath, supra at 622; see 

also Laird, supra at 978; Rolan, supra at 406. Appellant’s fifth issue 

would not merit relief.

Therefore, based on our review of Appellant’s issues, we conclude that 

the PCRA court did not err or abuse its discretion in denying his PCRA 

petition, and that Appellant would not be entitled to appellate relief, even if 

he had not waived his claims. See Rigg, supra at 1084.

Order affirmed.

President Judge Gantman joins the Memorandum.

Judge Olson concurs in the result.
J-S58013-15

- 14 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2015