J-A15019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BARRY E. GROVE

No. 1934 MDA 2016

Appeal from the PCRA Order dated November 22, 2016

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.

MEMORANDUM BY SOLANO, J.: FILED JULY 05, 2017

The Commonwealth appeals from the November 22, 2016 order issued 

by the Court of Common Pleas of Centre County that granted Appellee 

Barry E. Grove’s request for discovery in connection with his Post-Conviction 

Relief Act (PCRA)1 petition. We remand for the limited purpose of giving the 

PCRA court an opportunity to enter an order that would clarify whether this 

appeal is moot.

On April 23, 2013, Grove shot his dog, Anne, in his neighbor’s yard. 

The neighbor, Sherry McCloskey, called the police. When they arrived, 

Grove said he shot the dog because she had killed his chickens. Anne was 

severely injured, but still alive, and the police euthanized her. The police 

checked Grove’s criminal history and discovered that he had been convicted 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
J-A15019-17

- 2 -

of criminal trespass in 1978. Under an amended provision of the Uniform 

Firearms Act that was in effect in 2013, 18 Pa. C.S. § 6105, 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.2 The trial court severed the two charges. 

In an earlier opinion, this Court described the procedural history of the 

firearms charge under Section 6105 of the Criminal Code as follows: 

On December 9, 2013, Grove filed a motion in limine

requesting the trial court preclude the Commonwealth from 

providing any details regarding the animal cruelty charge at his 

jury trial. Thereafter, on January 8, 2014, and January 15, 

2014, Grove filed an original and amended motion to dismiss the 

charge of persons not to possess firearms based upon his 1978 

guilty plea to criminal trespass. He argued, inter alia, that: (1) 

at the time of his 1978 conviction, he was not prohibited from 

possessing a firearm; (2) he received no notice when the law 

was amended in 1995; and (3) the amendment should not apply 

to him retroactively. The Commonwealth filed its own motion in 

limine on January 20, 2014, seeking to preclude Grove from, 

inter alia, presenting a defense as to his ignorance of the law. 

On January 23, 2014, one day before Grove’s scheduled jury 

trial, the trial court [Judge Bradley Lunsford] entered an order 

denying Grove’s motions to dismiss, and granting the 

Commonwealth’s motion in limine.

In light of the trial court’s ruling, Grove waived his right to 

a jury trial and proceeded to a bench trial [before Judge 

Lunsford] on January 24, 2014. That same day, the trial court 

entered a verdict of guilty on the charge of persons not to 

possess firearms. After the verdict, and upon the motion of the 

Commonwealth, the trial court revoked Grove’s bail. Thereafter, 

____________________________________________

2 18 Pa.C.S. §§ 5511(a)(2.1)(A), 6105(a)(1). 
J-A15019-17

- 3 -

Grove filed both a petition for bail pending appeal, and a motion 

for bail for emergency medical treatment. 

On February 20, 2014, the trial court imposed a sentence 

of five to 10 years’ imprisonment for Grove’s conviction under 

Section 6105. Additionally, at the close of the hearing, the court 

denied Grove’s outstanding motions for bail. Thereafter, Grove 

filed a timely post sentence motion, raising the same claims as 

in his pretrial motion to dismiss and his motion in limine, as well 

as challenging the court’s discretion in revoking his bail. 

While that motion was pending, Grove petitioned this Court 

for review of the trial court’s orders denying bail pending appeal 

and for emergency medical treatment.

[On March 21, 2014, this Court denied review of the trial 

court’s decision to deny bail pending appeal. After several 

orders from this Court regarding the request for bail for 

emergency medical treatment, the trial court explained that 

Grove would be furloughed for surgery.]

Thereafter, on June 12 and 16, 2014, the trial court 

conducted hearings on Grove’s post-sentence motions. On 

June 16, 2014, the trial court entered an order denying Grove’s 

post-sentence motions.

Commonwealth v. Grove, 1135 MDA 2014, at 3-7 (Pa. Super. July 28, 

2015) (unpublished memorandum) (footnotes omitted), appeal denied, 

130 A.3d 1287 (Pa. 2015). 

Meanwhile, 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 direct appeal from his judgment of sentence for 

the firearms conviction. On July 28, 2015, this Court affirmed the judgment 
J-A15019-17

- 4 -

of sentence.3 On December 11, 2015, the Supreme Court of Pennsylvania 

denied Grove’s petition for allowance of appeal.

On October 12, 2016, Grove filed his PCRA petition. In it, Grove 

alleged that his trial counsel had been ineffective. Grove raised eight claims 

in his petition, including a claim that trial counsel had failed to challenge an 

incorrect prior record score under the Pennsylvania Sentencing Guidelines, 

204 Pa. Code §§ 303.1 et seq., which resulted in imposition of a longer 

sentence than Grove should have received. Grove’s full list of claims was:

(1) Abrogation of the right to an impartial tribunal;

(2) Failure to move for recusal;

(3) Petitioner was not, as a matter of law, disqualified from 

possessing a firearm;

(4) Failure to raise Equal Protection claim;

(5) Failure to raise Second Amendment claim;

____________________________________________

3

In his direct appeal, Grove claimed: (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 violation of Section 

6105 contravened due process because Grove was not notified of the 1995 

amendment to the statute which made him ineligible to possess a firearm; 

(5) the retroactive application of Section 6105 stripped Grove of the right to 

bear arms; (6) the trial court erred in concluding that Section 6105 was 

“essentially” a strict liability crime because the court determined 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 Section 6105; and 

(9) the trial court abused its discretion in denying Grove bail following his 

conviction.
J-A15019-17

- 5 -

(6) Failure to challenge incorrect prior record score;

(7) Failure to challenge testimony of Sherry McCloskey; and 

(8) Failure to present a defense under 3 P.S. § 328.2/infirm 

guilty plea.

PCRA Pet., 10/12/16, at 1-4.4 Grove’s request for relief sought (1) 

discovery; (2) an expedited evidentiary hearing;5(3) a new trial; and (4) a 

new sentencing proceeding. Id. at 6.

With respect to the first two claims in his petition, Grove alleged:

Until exposed through Right to Know Law requests during 

the fall of 2014, Centre County District Attorney Stacy ParksMiller was in the practice of communicating ex parte with former 

Centre County Judge Bradley Lunsford for the purpose of 

influencing his rulings on various matters at bar. At times, 

Parks-Miller would “text” Judge Lunsford for this purpose. In 

[Grove’s] case, Parks-Miller allied herself with a social-mediabased activist group called “Justice for Anne,” “Anne” being the 

dog [Grove] shot for killing 150 of his chickens and between five 

and a dozen domesticated rabbits. These activists declared 

[Grove] to be “sub human,” characterized his counsel’s efforts as 

“scum defending scum,” and called for [Grove] to be “punished 

to the highest extent the law will allow.” In their Facebook 

posts, the activists recounted emailing Judge Lunsford about 

such matters as “why [Grove] needed the maximum penalty for 

____________________________________________

4 Grove filed an amended PCRA petition on December 27, 2016, which added 

three claims: ineffective assistance of appellate counsel for failing to 

adequately develop his Second Amendment claim; ineffective assistance of 

trial counsel for failing to present the affirmative defense defined by 18 

Pa.C.S. § 6105(a)(2)(i); and ineffective assistance of trial counsel for failing 

to move to quash the firearms charge on the basis that application of 

Section 6105 to Grove was an unlawful bill of attainder.

5

 Grove sought an expedited hearing because of his failing health (he has 

cancer) and “the manifest injustices visited upon [him] during this criminal 

action.” PCRA Pet. at 6.
J-A15019-17

- 6 -

what he did to Anne.” The Facebook page recounts that activists 

received “a very understanding” response from Judge Lunsford.

The communications between the “Justice for Anne” 

activists and Judge Lunsford, standing alone, violated [Grove’s] 

constitutional right to an impartial tribunal. An evidentiary 

hearing is required to determine whether Parks-Miller followed 

her customary practice of attempting to influence Judge Lunsford 

ex parte in this case.

* * *

Trial counsel was aware that Judge Lunsford had been 

communicating with the “Justice for Anne” activists. His failure 

to move for recusal constituted ineffective assistance of counsel. 

PCRA Pet. at 1-2. On the same day that he filed his petition, Grove filed a 

motion for discovery that sought evidence relating to (1) ex parte electronic 

communications between Judge Lunsford and Parks Miller and/or other 

members of the District Attorney’s Office; and (2) Facebook and/or other 

media communications between Parks Miller and members of the public 

regarding Grove. 

On November 18, 2016, the Commonwealth filed an Answer to Grove’s 

Motion for Discovery, along with a Motion to Dismiss. The Commonwealth 

argued that Grove had not met the “exceptional circumstances” standard for 

PCRA discovery under Pa.R.Crim.P. 902.6 On November 21, 2016, Grove 

filed a brief in support of his motion for discovery, averring that exceptional 

____________________________________________

6 Rule 902 states, in pertinent part: “Except as provided in paragraph (E)(2) 

[relating to a defendant’s first counseled petition in a death penalty case], 

no discovery shall be permitted at any stage of the proceedings, except upon 

leave of court after a showing of exceptional circumstances.” Pa.R.Crim.P. 

902(E)(1).
J-A15019-17

- 7 -

circumstances existed because (1) Judge Lunsford’s former court reporter 

(Maggie Miller) stated in an affidavit that Parks Miller and Judge Lunsford 

texted each other during an April 2012 trial in Commonwealth v. Randall 

Brooks regarding issues that arose during that trial — conduct suggesting 

that they might also have done the same thing in this case; (2) while 

Grove’s case was pending, Parks Miller made comments in conventional and 

social media “excoriating” Grove, which resulted in the creation of the 

“Justice for Anne” social media activist group that sought imposition of a 

maximum sentence for Grove; (3) these activists communicated ex parte

with Judge Lunsford to urge him to impose the maximum penalty on Grove; 

and (4) phone records showed that on June 13, 2014, after the first day of 

the hearing on Grove’s post-sentence motion, Judge Lunsford and 

Parks Miller exchanged 47 text messages, the content of which was 

unknown. In particular, Grove sought:

(1) discovery of all communications between members of the 

Centre County District Attorney’s Office and Judge Lunsford 

during the entire temporal span of [Grove’s] case; and (2) 

discovery of all communications between members of the Centre 

County District Attorney’s Office and the “Justice for Anne” social 

media activist group during the entire temporal span of [Grove’s] 

case.

Grove’s Brief in Supp. of Mot. for Disc. at 4.
J-A15019-17

- 8 -

On November 22, 2016, the PCRA court, with Clinton County Court of 

Common Pleas Senior Judge J. Michael Williamson specially presiding,7 held 

a hearing on Grove’s motion for discovery. At that hearing, an employee of 

the Centre County Commissioner’s Office, Julie Lutz, testified regarding 

records of telephone calls and text messages between Judge Lunsford and 

either District Attorney Parks Miller or Assistant District Attorney Nathan 

Boob (Parks Miller’s co-counsel during Grove’s trial). Lutz brought to the 

hearing records relating to such communications between May 2014 and 

December 2014.8 She did not bring records regarding communications prior 

to May 2014 because they needed to be redacted, and she testified that she 

did not know if those records showed that there were phone calls between 

Parks Miller and Judge Lunsford prior to May 2014. N.T., 11/22/16, at 15-

36. There was also testimony from Maggie Miller, Judge Lunsford’s former 

court reporter, who stated (over a hearsay objection) that during the April 

2012 trial of Randall Brooks, Judge Lunsford told her that Parks Miller had 

____________________________________________

7

Judge Lunsford had retired in January of 2016. 

8

 Grove’s lawyer subpoenaed the records from Lutz. The records had been 

compiled previously, in response to a request made in the fall of 2014 under 

the Pennsylvania Right to Know Law, 65 P.S. §§ 67.101 to 67.3104, for 

communications between Judge Lunsford and personnel of the District 

Attorney’s office in connection with a different case (Commonwealth v. 

McClure, Centre County No. CP-14-CR-1778-2012). 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. County of Centre, 138 A.3d 88 

(Pa. Cmwlth.), appeal denied, 157 A.3d 483 (Pa. 2016).
J-A15019-17

- 9 -

been texting him to complain about his rulings in that case. N.T., 11/22/16, 

at 67-69.

On November 23, 2016, the PCRA court issued an order granting 

Grove’s motion for discovery. That order allowed counsel for Grove to 

request from the appropriate Centre County officials:

1. . . . [A]ny records of text or phone messages for the time 

period beginning January 15, 2014 through March 16, 2014 and 

for the period beginning June 10, 2014 through June 18, 2014 

between former Judge Lunsford and any member of the District 

Attorney’s Office.

2. . . . [T]he production of any electronic device issued to Judge 

Lunsford, District Attorney Parks Miller, Assistant District 

Attorney Boob, and Assistant District Attorney [Lindsay] Foster[9] 

for the above periods. 

Order, 11/23/16. The order further provided:

3. Defense counsel may request discovery from the Bellefonte 

Police Department concerning any downloading of phone or text 

messages of District Attorney Parks Miller related to this case 

only.[10]

4. Defense Counsel may request of the Office of Disciplinary 

Counsel and the Judicial Conduct Board, any material in the 

____________________________________________

9

 The phone records obtained through the Right to Know request showed 

that ADA Foster had exchanged numerous text messages with Judge 

Lunsford during the criminal trial in Commonwealth v. McClure in 

September 2014. The record in this appeal contains no evidence that Foster 

was involved in Grove’s case.

10

 In January 2015, Parks Miller’s phone was seized pursuant to a search 

warrant after she was accused of forgery in another matter. The statewide 

investigating grand jury judge later ruled that the warrant used to seize 

Parks Miller’s phone was invalid. Parks Miller averred that the phone that 

was seized was not the one she used during Grove’s trial. 
J-A15019-17

- 10 -

possession of either agency which involves a downloading of any 

telephone or text messages regarding this case.

Any information received from the Office of Disciplinary 

Counsel or the Judicial Conduct Board shall be sent directly to 

the undersigned Judge for in-camera review prior to release to 

any of the parties.

Id. 

That same day, the Commonwealth filed a notice of appeal from the 

PCRA court’s discovery order. The Commonwealth stated it was appealing 

pursuant to Pa.R.A.P. 313 (collateral orders). When it filed its appeal, the 

Commonwealth had not yet received a written copy of the PCRA court’s 

discovery order. The Commonwealth filed an amended notice of appeal, 

with the order attached, on December 1, 2016.11 

On January 11, 2017, the PCRA court held a hearing on Grove’s PCRA 

petition. The transcript for this hearing is sealed, but in an unsealed 

January 24, 2017 motion to this Court (discussed below), the 

Commonwealth represented that the hearing included presentation of 

evidence regarding telephone conversations between Judge Lunsford and the 

District Attorney’s office. Also at that hearing, Grove’s trial counsel and the 

person who prepared Grove’s presentence investigation report testified 

____________________________________________

11 On December 21, 2016, this Court issued an order directing the 

Commonwealth “to show cause within 10 days from the date of this Order, 

why the appeal should not be quashed as taken from an unappealable order 

and how this appeal satisfies the requirements of Pa.R.A.P. 313.” On 

January 3, 2017, the Commonwealth filed a timely response, and on January 

5, this Court discharged the rule to show cause and referred the issue of 

appealability to the merits panel.
J-A15019-17

- 11 -

about Grove’s ineffective assistance of counsel claims. The hearing was 

adjourned and scheduled to continue on January 25, 2017.

On January 24, 2017, the day before the PCRA hearing was scheduled 

to resume, the Commonwealth filed in this Court an “Emergency Motion to 

Enforce Appellate Stay Under Pa.R.A.P. 1701.” Referencing the discovery 

issues being pursued by Grove, the Commonwealth argued that, under 

Appellate Rule 1701, the lower court should not act on “these issues” until 

its appeal was resolved.12 The Commonwealth noted that at the January 11, 

2017 evidentiary hearing, Grove sought to elicit testimony about the same 

records that were the subject of the discovery order as to which it had filed 

its appeal.13 Further, the Commonwealth averred that it had just learned 

that the PCRA court had scheduled a witness who had been called to testify 

at the January 11 hearing regarding the phone records to testify during the 

January 25, 2017 proceeding. The Commonwealth asked this Court to 

“issue an order enforcing an appellate stay pursuant to Pa.R.A.P. 1701 and 

directing the lower court to suspend any further proceedings, testimony, or 

document production in this matter until this . . . Court relinquishes 

jurisdiction.” That same day, this Court issued the following order:

____________________________________________

12 Appellate Rule 1701(a) provides: “Except as otherwise prescribed by 

these rules, after an appeal is taken or review of a quasijudicial order is 

sought, the trial court or other government unit may no longer proceed 

further in the matter.”

13 The Commonwealth did not argue that the other testimony at the January 

11 hearing was improper.
J-A15019-17

- 12 -

Upon consideration of the Commonwealth’s “emergency 

motion to enforce appellate stay under Pa.R.A.P. 1701,” filed in 

this Court on January 24, 2017 at 2:13 P.M., wherein the 

Commonwealth requested, in part, that this Court stay a trial 

court proceeding scheduled for January 25, 2017 at 10:00 A.M., 

the proceedings below in the trial court are hereby STAYED

pending disposition of the above-captioned appeal.

Order, 1/24/17.

On January 25, 2017, the PCRA court filed an opinion and order dated 

January 23, 2017 that granted Grove’s PCRA petition in part.14 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 vacated Grove’s 

sentences for both the gun and animal cruelty convictions. The PCRA court 

stated:

Defendant suggests counsel was ineffective in failing to 

correct an error in his prior record score at the time of 

sentencing. Trial counsel acknowledged that he believed the 

correct prior record score was a four (4), but failed to raise the 

issue. The Commonwealth contends the sentence imposed was 

not an illegal sentence, suggesting that even if the prior record 

score was a three (3), the imposed sentence of sixty (60) to one 

hundred twenty (120) months was within the fifty-four (54) to 

seventy-two (72) month standard minimum range. The 

Commonwealth suggests such questions regarding the discretion 

____________________________________________

14 It appears that the scheduled January 25, 2016 PCRA evidentiary hearing 

did not take place. At the time of the scheduled hearing, the PCRA court 

announced that it had filed its opinion. The PCRA court stated that its 

opinion was prepared on and dated January 23, 2017, prior to this Court’s 

January 24 stay order. The PCRA court stated, “I have already decided this 

case[.] I don’t think the Superior Court can tell me not to file an opinion and 

a decision which I have already reached.” N.T., 1/25/17, at 3. The 

Commonwealth objected to the filing of the opinion and order, arguing that 

the PCRA court lost jurisdiction when the Commonwealth filed its notice of 

appeal on November 23, 2016. Id.
J-A15019-17

- 13 -

of the Sentencing Court are not cognizable in a post-conviction 

petition.

We find no reasonable basis for trial counsel's failure to 

advise the Sentencing Court of the correct prior record score, 

which, on the basis of testimony presented by the Centre County 

Probation Department arguably was a four (4). Because the 

actual sentence was at the lowest level of the standard range, 

we are unable to say that the Sentencing Court would not have 

imposed a fifty-four (54) month minimum sentence had the prior 

record score been either a three (3) or a four (4). Under such 

circumstances, we find trial counsel to have been ineffective, 

vacate the sentences imposed on both counts, and direct that 

the matter be listed for resentencing.

PCRA Ct. Op. and Order, 1/25/17, at 4. The PCRA court further ordered 

that, pending resentencing, Grove be immediately released and placed on 

house arrest. 

With regard to 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 recusal of Judge Lunsford — the claims as to which he 

sought the discovery at issue in this appeal — the PCRA court said:

Unlike other cases in which this issue has been raised recently, 

the thrust of [Grove]’s argument involves only the effect of the 

alleged ex parte contacts on [Grove]’s sentences. 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. Because . . . we 

are vacating [Grove]’s sentences, we find it unnecessary to 

further pursue the issue of alleged ex parte communications.

PCRA Ct. Op. and Order, 1/25/17, at 1. The PCRA court denied relief on all 

of Grove’s remaining claims. 
J-A15019-17

- 14 -

On January 25, 2017, the Commonwealth filed in this Court a “Motion 

for Emergency Stay of the Trial Court’s Order Filed January 25, 2017.” The 

Commonwealth alleged that the PCRA court had exercised jurisdiction in 

violation of this Court’s January 24, 2015 order. The Commonwealth added, 

“the trial court actually lost jurisdiction on the matter on November 23, 2016 

when the Commonwealth originally filed its appeal to the Superior Court.” 

The Commonwealth requested that this Court “issue an order enforcing an 

appellate stay pursuant to Pa.R.A.P. 1701 and staying the trial court’s order 

granting [Grove]’s PCRA and releasing [Grove] from prison.” That same 

day, this Court issued an interim order that stated in pertinent part:

The trial court’s January 25, 2017 order is temporarily 

STAYED. As Appellee has not had a full opportunity to respond 

to the Commonwealth’s motion, Appellee is directed to file with 

this Court a response to the Commonwealth’s emergency motion 

within seven (7) days from the date of this Order.

Order, 1/25/17.

Grove filed timely responses to both the Commonwealth’s January 24 

and January 25 motions. In the latter response, Grove averred, among 

other things, 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. The Commonwealth filed a reply on February 2, 2017, arguing in part 

that the PCRA court’s January 25, 2017 order was void because the PCRA 

court lacked jurisdiction after the Commonwealth filed its notice of appeal on 

November 23, 2016.
J-A15019-17

- 15 -

On February 1, 2017, Grove filed a motion to modify this Court’s 

January 24, 2017 order, which had stayed proceedings in the trial court. 

Citing Pa.R.A.P. 1701(c),15 Grove asked this Court to rescind the stay as to 

any PCRA claims not associated with the discovery order — that is, all except 

the first two claims in Grove’s October 12, 2016 PCRA petition. The 

Commonwealth opposed Grove’s motion. 

On February 9, 2017, this Court issued an order (1) granting the 

Commonwealth’s motion to stay the PCRA court’s January 25, 2017 order 

“pending disposition of the above-captioned appeal,” and (2) denying as 

moot Grove’s motion to modify this Court’s January 24, 2017 order. We 

further ordered that this matter be briefed and scheduled for argument on 

an expedited basis.16 

____________________________________________

15 Rule 1701(c) states:

Where only a particular item, claim or assessment adjudged in 

the matter is involved in an appeal, or in a petition for review 

proceeding relating to a quasijudicial order, the appeal or 

petition for review proceeding shall operate to prevent the trial 

court or other government unit from proceeding further with 

only such item, claim or assessment, unless otherwise ordered 

by the trial court or other government unit or by the appellate 

court or a judge thereof as necessary to preserve the rights of 

the appellant.

16 Upon ordering Grove’s resentencing, the PCRA court’s January 25, 2017 

order provided, “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,” and it advised Grove of his right to appeal “from 

the final Sentencing Order to be entered in the future.” PCRA Ct. Order, 

1/25/17, ¶¶ 3-4. Nevertheless, on February 24, 2017, Grove appealed from 

(Footnote Continued Next Page)
J-A15019-17

- 16 -

In this appeal, the Commonwealth raises the following issues:

I. Whether this Court has jurisdiction, under Pa.R.A.P. 313, over 

the Commonwealth’s appeal from the PCRA court’s grant of 

discovery with respect to:

A. Phone records of communications between Judge Lunsford 

and any member of the Centre County DA’s office between 

January 15, 2014 and March 16, 2014, and June 10, 2014 

through June 16, 2014; and electronic devices belonging to 

Judge Lunsford, DA Stacy Parks Miller, ADA Boob, and ADA 

Foster;

B. The fruits of an illegal forensic analysis of a cell phone once 

belonging to DA Parks Miller, a cell phone not used by Parks 

Miller during [Grove]’s trial;

C. Material allegedly possessed by the Judicial Conduct Board 

and the Disciplinary Board.

II. Whether the PCRA court committed an abuse of discretion by 

granting [Grove]’s motion for discovery because [Grove] did not 

meet the Pa.R.Crim.P. 902(E)(1) exceptional circumstances 

standard permitting discovery in a non-capital PCRA proceeding.

Commonwealth’s Brief at 6.

(Footnote Continued) _______________________

the PCRA court’s January 25, 2017 order. See Commonwealth v. Grove, 

No. 358 MDA 2017. In that appeal, Grove argues, among other things, that 

the trial court erred in not conducting an evidentiary hearing on the issue of 

ex parte communications. He contends that had he been allowed to prove 

his claim of ex parte communications during the pretrial or trial proceedings 

in his case, the PCRA court would have had to vacate his convictions, not 

just his sentences. Grove stated that he filed the new appeal “[b]ecause 

this Court has not, to date, clarified the significance of [this Court’s stay 

order] on the January 23/25, 2017 order of the PCRA court.” Grove’s Brief, 

No. 358 MDA 2017, at 9-10. During oral argument in this case, Grove’s 

counsel repeated that explanation and argued that, despite his appeal from 

the January 25 order, the partial relief granted by that order renders his 

appeal in this case moot. 
J-A15019-17

- 17 -

Before reaching the merits of the Commonwealth’s issues, we must 

address whether this appeal is moot in light of the PCRA court’s January 25, 

2017 order granting Grove a new sentencing hearing. Our Supreme Court 

has explained:

An accurate description of those circumstances which raise the

issue of mootness is provided by Professor Gunther, who writes:

The cases presenting mootness problems involve litigants 

who clearly had standing to sue at the outset of the 

litigation. The problems arise from events occurring after 

the lawsuit has gotten under way — changes in the facts 

or in the law — which allegedly deprive the litigant of the 

necessary stake in the outcome. The mootness doctrine 

requires that “an actual controversy must be extant at all 

stages of review, not merely at the time the complaint is 

filed.” G. Gunther, Constitutional Law 1578 (9th ed. 

1975).

It is well established in this jurisdiction that this Court will not 

decide moot questions. As explained above, a legal question can 

become moot on appeal as a result of an intervening change in 

the facts of the case. For example, [a quo warranto action may 

be mooted by the expiration of the defendant’s term of office; a 

contract action may be mooted by entry into a new superseding 

contract, and an action for possession of property may be 

mooted by a conveyance of the property]. 

Similarly, an issue can become moot due to an intervening 

change in the applicable law.

In re Gross, 382 A.2d 116, 119-20 (Pa. 1978) (cited cases omitted); see 

Commonwealth, Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon 

Cty., 32 A.3d 639, 651 (Pa. 2011); In re Cain, 590 A.2d 291, 292 (Pa. 

1991); Commonwealth v. Ahlborn, 683 A.2d 632, 639 (Pa. Super. 1996) 

(en banc), aff’d, 699 A.2d 718 (Pa. 1997); Commonwealth v. Dorler, 588 
J-A15019-17

- 18 -

A.2d 525, 526 (Pa. Super. 1991); Graziano Constr. Co. v. Lee, 444 A.2d 

1190, 1193 (Pa. Super. 1982).

The PCRA court’s January 25, 2017 opinion ordered that Grove be 

resentenced on grounds unrelated to the discovery issues that the 

Commonwealth seeks to present in this appeal. The Commonwealth’s 

appeal therefore is moot insofar as it relates to the sentencing aspects of 

Grove’s PCRA petition, as the PCRA court has announced that it plans to 

afford Grove relief with respect to his sentence without regard to any 

ultimate outcome regarding the Commonwealth’s discovery issues. 

However, Grove’s PCRA petition did not just seek resentencing; Grove 

also sought a new trial to determine his guilt or innocence, at least with 

respect to the firearms charge (he pled guilty to the charge of cruelty to 

animals). The PCRA court opined that the discovery issues in this appeal are 

relevant only to Grove’s sentence, and not to the issues of guilt or 

innocence, PCRA Ct. Op., 1/25/17, at 1, and the PCRA court held that, as a 

substantive matter, Grove is entitled to no relief under his petition except as 

to resentencing, PCRA Ct. Order, 1/25/17, ¶ 2. If that is correct, then there 

is no question that the discovery issues raised by the Commonwealth in this 

appeal clearly are moot, since they bear only on sentencing relief that Grove 

has already obtained. The PCRA court did not fully explain why it concluded 

that the discovery issues relate only to Grove’s sentencing, but it apparently 

based its conclusion on the absence of disputed factual issues during the 
J-A15019-17

- 19 -

proceedings at which Grove was convicted, making the chance of any 

prejudice resulting from ex parte communications between Judge Lunsford 

and District Attorney personnel during those proceedings slim. See PCRA 

Ct. Op., 1/25/17, at 1.17 

During oral argument in this appeal, Grove’s counsel expressed 

disagreement with the PCRA court’s conclusion regarding the non-sentencing 

claims and suggested that he intends to pursue the effect of any ex parte

communications on Grove’s conviction in a separate appeal from those 

portions of the PCRA court’s January 25, 2017 order that denied relief apart 

from sentencing.18 Nevertheless, Grove takes the position that any such 

claim must be litigated in proceedings separate from the appeal that is now 

before us and that, insofar as this present appeal is concerned, the discovery 

issues presented by the Commonwealth are indeed moot. During oral 

argument, the Commonwealth also agreed that the PCRA court’s January 25, 

____________________________________________

17 As noted, Grove pleaded guilty to the charge of cruelty to animals. He 

contested the firearms charge by raising several legal defenses, but did not 

contest the factual evidence. This Court rejected Grove’s legal challenges to 

the firearms charge in Grove’s direct appeal. See Grove, 1135 MDA 2014, 

at 2, 7-32.

18 As we have noted (see fn. 16, supra), Grove already has filed such an 

appeal, which is separately docketed in this Court at No. 358 MDA 2017. 

That appeal has not been consolidated with this one, and we therefore do 

not address it here, except to note that its filing after this Court had entered 

an order staying proceedings in the PCRA court and before the PCRA court 

entered a new sentencing order raises grave questions about whether that 

appeal is valid.
J-A15019-17

- 20 -

2017 order, if validly entered (an issue we address below), would render this 

appeal moot. 

After considering the various positions of the parties, we conclude 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. The Commonwealth’s appeal raises 

substantial questions regarding the availability and permissible scope of 

discovery in PCRA cases — questions that are especially delicate because 

they involve discovery regarding communications with a judge. The appeal 

also raises important threshold questions regarding our jurisdiction to hear 

such a case under the collateral order doctrine. But the PCRA court’s order 

for resentencing has removed any possibility that any decision we render in 

this case with respect to discovery from the Commonwealth can have any 

bearing on the sentencing aspect of Grove’s petition. In addition, the PCRA 

court’s dismissal of the parts of Grove’s petition other than his request for 

resentencing has, at the least, made the prospect that any decision we 

render in this appeal will have any bearing on those non-sentencing issues 

quite attenuated. To succeed on the non-sentencing claims, Grove will have 

to show that the PCRA court erred on the merits in dismissing them, and 

that discovery from the Commonwealth is likely to lead to an increased 

chance of a new trial — an outcome that the PCRA court has now rejected. 
J-A15019-17

- 21 -

Any such claim by Grove should be pursued, if at all, by a separate appeal 

from those parts of the PCRA court’s January 25, 2017 order that denied 

relief on his non-sentencing claims. This is not such an appeal. We 

therefore agree with the views expressed by both parties during oral 

argument that the PCRA court’s January 25, 2017 order renders this appeal 

moot.

The Commonwealth contends, however, that the PCRA court did not 

have jurisdiction to enter its January 25, 2017 order, both because the court 

was divested of jurisdiction by the filing of the Commonwealth’s appeal in 

November 2016 and because we issued a stay order on January 24, 2017. 

The PCRA court apparently took the position that it was authorized to enter 

its order because it was granting relief on an aspect of the PCRA petition 

(the incorrect prior record score) that was not implicated by the 

Commonwealth’s appeal, see Pa.R.A.P. 1701(c), and because it signed its 

order on January 23, 2017, a day before we entered the stay. We find it 

unnecessary to resolve this dispute. Suffice it to say that the jurisdictional 

questions attending the January 25, 2017 order raise serious doubts 

regarding the order’s validity. 

These doubts can readily be removed. After an appeal is taken, the 

Appellate Rules permit a trial court to “[t]ake any action directed or 

authorized on application by the appellate court.” Pa.R.A.P. 1701(b)(5). 

Accordingly, because there is a substantial question whether the PCRA 
J-A15019-17

- 22 -

court’s January 25, 2017 order was invalid when entered, we remand the 

case to the PCRA court for the limited purpose of allowing it, within 14 days 

of entry of this memorandum, 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. The PCRA court shall supplement the certified record as 

appropriate. If the PCRA court re-enters its January 25, 2017 order, this 

Court will issue an order quashing the Commonwealth’s appeal as moot. If 

the PCRA court does not reissue its January 25, 2017 order, we shall take 

such further action in this appeal as we conclude is appropriate.

Case remanded with instructions. Panel jurisdiction retained.