J-S18027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID LEE GROVER JR. 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2042 MDA 2018

Appeal from the PCRA Order Entered November 27, 2018

In the Court of Common Pleas of Huntingdon County Criminal Division at 

No(s): CP-31-CR-0000054-2010

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED: MAY 23, 2019

Appellant David Lee Grover Jr. appeals from the order dismissing as 

untimely his serial Post Conviction Relief Act1 (PCRA) petition challenging the 

applicability of the Sex Offender Registration and Notification Act (SORNA), 

42 Pa.C.S. §§ 9799.10-9799.75 (subsequently amended Feb. 21, 2018).2 

Appellant contends that this Court may consider the merits of his petition 

because the Pennsylvania Supreme Court has not yet ruled on the retroactive 

application of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). We 

affirm. 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 Appellant does not raise any arguments based on Subchapter I of the 

amended version of SORNA. See 42 Pa.C.S. §§ 9799.51-9799.75. 
J-S18027-19

- 2 -

The PCRA court summarized the procedural history of this appeal as 

follows:

[Appellant] was convicted by a Huntingdon County jury on 

January 12, 2011, of involuntary deviate sexual intercourse,

[fn1]

statutory sexual assault,

[fn2] aggravated indecent assault,[fn3]

corruption of minors[fn4] and indecent assault.

[fn5] He was 

sentenced on May 19, 2011, to an aggregate term of incarceration 

of not less than ten (10) years or more than twenty (20) years. 

The judgment of sentence was affirmed by the Superior Court of 

Pennsylvania on April 9, 2012. Commonwealth v. Grover, [998 

MDA 2011 (Pa. Super. filed Apr. 9, 2012) (unpublished mem.)]. 

[Appellant did not seek allowance of appeal in the Pennsylvania 

Supreme Court. Appellant timely filed a first PCRA petition in 

October 2012.] [Appellant’s] first PCRA petition was denied [on] 

January 21, 2015. That decision was affirmed by the Superior 

Court on November 24, 2015. Commonwealth v. Grover, [622 

MDA 2015 (Pa. Super. filed Nov. 24, 2015) (unpublished mem.)]. 

A second PCRA petition was dismissed by this [c]ourt on April 28, 

2016. That decision was affirmed by the Superior Court [on] 

October 24, 2016. Commonwealth v. Grover, [784 MDA 2016 

(Pa. Super filed Oct. 24, 2016) (unpublished mem.)]. A third 

PCRA petition was dismissed by this [c]ourt without [a] hearing 

on November 2, 2017.[3] No appeal was taken from [that] 

decision. 

[fn1] 18 Pa.C.S. [§] 3123(7). [All charges related to conduct 

that occurred between August 2009 and January 2010. 

Appellant was subject to a lifetime registration requirement 

under 42 Pa.C.S. §§ 9791-9799.9 (expired December 20, 

2012), also known as Megan’s Law III.]

[fn2] 18 Pa.C.S.[§] 3122.1. 

____________________________________________

3 The Pennsylvania Supreme Court decided Muniz on July 19, 2017. Appellant 

initially raised Muniz in his third PCRA petition, which was postmarked on 

September 11, 2017. The PCRA court denied relief based on its conclusion 

that SORNA did not increase the length of Appellant’s registration 

requirement. That issue is not before this Court. 
J-S18027-19

- 3 -

[fn3] 18 Pa.C.S.[ §] 3125(8). 

[fn4] 18 Pa.C.S.[ §] 6303(a)(1). 

The petition sub judice was filed [in January 2018.

4] Counsel was 

appointed, and an amended petition was filed [on] March 29, 

2018. A supplemental amendment was docketed on July 17, 

2018. A hearing was held [on] September 25, 2018.

PCRA Ct. Order & Mem., 11/27/18, at 2-3 (unpaginated) (some capitalization 

omitted). On November 27, 2018, the PCRA court dismissed Appellant’s 

petition as untimely based on this Court’s decision in Commonwealth v. 

Murphy, 180 A.3d 402 (Pa. Super. 2018), appeal denied, 195 A.3d 559 (Pa. 

2018). Id. at 6. 

Appellant timely appealed and complied with the PCRA court’s order to 

file and serve a Pa.R.A.P. 1925(b) statement. This appeal followed. 

Appellant concedes that Murphy remains the controlling authority on 

the question of whether the instant PCRA petition was timely filed. Appellant, 

however, continues: 

The key to the [Murphy] Court’s analysis is that to date, the 

Pennsylvania Supreme Court has remained silent on the 

retroactive application. As such, Appellant believes that the 

instant matter is ripe for consideration as a matter of unsettled 

law in this Commonwealth and proffers the within appeal. 

Appellant’s Brief at 4. 

When reviewing the dismissal of a PCRA petition on timeliness grounds, 

our review is limited to “whether the record supports the PCRA court’s 

____________________________________________

4 Appellant’s petition was postmarked January 29, 2018, and was received 

and docketed by the PCRA court on January 31, 2018. 
J-S18027-19

- 4 -

determination and whether the PCRA court’s decision is free of legal error.” 

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation 

omitted). 

It is well settled that “the timeliness of a PCRA petition is a jurisdictional 

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015) 

(citation omitted). A PCRA petition, “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes final.” 

42 Pa.C.S. § 9545(b)(1). A judgment is final “at the conclusion of direct 

review, including discretionary review in the Supreme Court of the United 

States and the Supreme Court of Pennsylvania, or at the expiration of time 

for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Courts may consider a 

PCRA petition filed more than one year after a judgment of sentence becomes 

final only if the petitioner pleads and proves one of the following three 

statutory exceptions: 

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this Commonwealth 

or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to 

the petitioner and could not have been ascertained by the exercise 

of due diligence; or 

(iii) the right asserted is a constitutional right that was recognized 

by the Supreme Court of the United States or the Supreme Court 

of Pennsylvania after the time period provided in this section and 

has been held by that court to apply retroactively.
J-S18027-19

- 5 -

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Moreover, a petitioner must file his petition 

within sixty days of the date the claim could have been presented. See 42 

Pa.C.S. § 9545(b)(2) (subsequently amended eff. Dec. 24, 2018).

Instantly, there is no dispute that Appellant’s PCRA petition was 

untimely on its face. Appellant instead seeks to invoke the exception set forth 

in Section 9545(b)(1)(iii). 

However, as emphasized in Murphy, the Pennsylvania Supreme Court’s 

silence is dispositive of Appellant’s claim. As the Murphy Court noted,

[s]ubsection (iii) of Section 9545 has two requirements. 

First, it provides that the right asserted is a constitutional 

right that was recognized by the Supreme Court of the 

United States or th[e Pennsylvania Supreme Court] after the 

time provided in this section. Second, it provides that the 

right “has been held” by “that court” to apply retroactively. 

Thus, a petitioner must prove that there is a “new” 

constitutional right and that the right “has been held” by 

that court to apply retroactively. The language “has been 

held” is in the past tense. These words mean that the action 

has already occurred, i.e., “that court” has already held the 

new constitutional right to be retroactive to cases on 

collateral review. By employing the past tense in writing 

this provision, the legislature clearly intended that the right 

was already recognized at the time the petition was filed.

Here, we acknowledge that this Court has declared that, “Muniz

created a substantive rule that retroactively applies in the 

collateral context.” Commonwealth v. Rivera-Figueroa, 174 

A.3d 674, 678 (Pa. Super. 2017). However, because [the 

petitioner]’s PCRA petition is untimely (unlike the petition at issue 

in Rivera-Figueroa), he must demonstrate that the Pennsylvania 

Supreme Court has held that Muniz applies retroactively in order 

to satisfy section 9545(b)(1)(iii). Because at this time, no such 

holding has been issued by our Supreme Court, [the petitioner]

cannot rely on Muniz to meet that timeliness exception.[fn1]
J-S18027-19

- 6 -

[fn1] Certainly, if the Pennsylvania Supreme Court issues a 

decision holding that Muniz applies retroactively, [the 

petitioner] can then file a PCRA petition . . . attempting to 

invoke the ‘new retroactive right’ exception of section 

9545(b)(1)(iii).

Murphy, 180 A.3d at 405-06 (citation omitted).

Here, the Pennsylvania Supreme Court has yet to hold that Muniz

applies retroactively. Accordingly, like the petitioner in Murphy, Appellant 

cannot rely on Muniz to excuse the facial untimeliness of the instant PCRA 

petition. See id. Therefore, the PCRA court properly dismissed Appellant’s 

petition as untimely. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2019