J-S13012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

BRANDON WILLIAM GROVER

Appellee

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1251 WDA 2017

Appeal from the PCRA Order August 10, 2017

In the Court of Common Pleas of Potter County 

Criminal Division at No(s): CP-53-CR-0000047-2013

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 07, 2019

Appellant, the Commonwealth of Pennsylvania, appeals from the order 

entered in the Potter County Court of Common Pleas, which granted the first 

petition of Appellee, Brandon William Grover, filed pursuant to the Post 

Conviction Relief Act (“PCRA”)1, vacated the judgment of sentence, and 

granted Appellee a new trial. Based on the following reasons, we vacate and 

reinstate Appellant’s judgment of sentence. 

The relevant facts and procedural history of this case are as follows. On 

August 13, 2011, Appellee and his then-girlfriend, Jessica Snyder, engaged in 

a physical altercation with another couple. The Commonwealth charged 

Appellee on January 11, 2013, with one count each of aggravated assault, 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
J-S13012-18

- 2 -

simple assault, and harassment. 

Appellee proceeded to a jury trial on May 8, 2014. At trial, Patrick 

Nelson (“Victim 1”), testified that on the night of the incident, he and his wife, 

Karen Nelson (“Victim 2”), visited a local bar where Appellee and Ms. Snyder 

were present. Victim 1 testified he and Victim 2 did not know or interact with

Appellee or Ms. Snyder prior to the altercation. Victim 1 explained as he and 

Victim 2 exited the bar, he noticed tension among some women gathered

outside. Victim 1 said he observed Ms. Snyder aggressively yelling and 

running towards Victim 2, which was the last detail he recalled from that 

evening before losing consciousness. 

Victim 2 also testified at trial. Victim 2 stated she did not interact with 

Appellee or Ms. Snyder while inside the bar. Victim 2 said when she exited 

the bar, Ms. Snyder asked her, “What are you looking at?” Victim 2 

responded, “Not much,” and walked away from Ms. Snyder. Victim 2 testified 

that while walking to the car, a hard object hit the back of her head, causing 

her to fall to the ground. Victim 2 stated Ms. Snyder jumped on top of her 

and hit her in the face. Victim 2 explained while Ms. Snyder attacked her, 

Appellee repeatedly kicked the upper body of Victim 1, who was rendered 

unconscious.

Jonathan Huff, the disc jockey at the bar the night of the incident, also 

testified. Mr. Huff stated Appellee and Ms. Snyder walked around the bar as 

though they were attempting to “pick a fight.” Mr. Huff notified a bartender
J-S13012-18

- 3 -

of Appellee’s and Ms. Snyder’s behavior, and a bar employee escorted the 

couple outside. Mr. Huff stated that as he was later loading his equipment 

into his vehicle outside the bar, he heard a bottle break, turned, and saw 

Victim 2 falling to the ground. Mr. Huff said he observed Victim 1 approach

Victim 2 in a manner indicating that he sought to break up the altercation. 

Mr. Huff stated that as Victim 1 attempted to break up the fight, Appellee 

punched Victim 1, knocking him to the ground. Mr. Huff added Appellee then 

kicked Victim 1 in the head and upper torso, while Victim 1 assumed a 

“defensive posture.”

The jury also heard testimony from Chandra Livingston, a bartender

working at the bar on the night of the incident. Ms. Livingston testified she 

did not notice Appellee and Ms. Snyder act aggressively until Mr. Huff notified 

her of two “verbally aggressive” patrons. Ms. Livingston stated that after 

observing the couple’s behavior, she had them escorted out of the bar. Ms.

Livingston did not witness the physical altercation, but afterward she observed

Victim 1 unconscious on the ground outside the bar. 

Trooper Andrew Mincer, the responding officer, also testified. Trooper 

Mincer stated that when he arrived to the scene, Victims 1 and 2 were 

receiving medical treatment. Trooper Mincer named Appellee and Ms. Snyder 

as suspects after he interviewed eyewitnesses to the fight; Mr. Huff specifically 

identified Appellee. Trooper Mincer also stated he unsuccessfully attempted 

to interview Appellee, who refused to speak with the trooper. Trooper Mincer 
J-S13012-18

- 4 -

opined Victim 1 did not use unlawful force against Appellee to justify Appellee’s 

attack. 

The jury also heard the testimony of Trooper Mark Vanvolkenburg, who

concluded the investigation of the altercation. Trooper Vanvolkenburg 

interviewed Victims 1 and 2, reviewed their medical records from the incident,

and filed charges against Appellee. Trooper Vanvolkenburg also testified 

regarding three of Appellee’s prior criminal cases involving allegations of 

assaultive behavior. Trooper Vanvolkenburg was not present for the prior

incidents nor did he conduct the investigations in the prior cases. Trooper 

Vanvolkenburg learned of the prior incidents when he reviewed the earlier 

case files during his investigation of the current incident. 

As to the first prior case, Trooper Vanvolkenburg testified that in 2002, 

Appellee entered a school to seek out a student with whom Appellee had a 

feud. Trooper Vanvolkenburg explained Appellee refused to leave the school

and threatened the staff when they asked him to leave. The Commonwealth 

charged Appellee with disorderly conduct, terroristic threats, criminal 

trespass, and harassment and stalking. Ultimately, Appellee entered a guilty

plea to disorderly conduct only. After Trooper Vanvolkenburg discussed this

episode, the Commonwealth introduced and the court admitted Exhibit 5. 

Exhibit 5 contained copies of the following documents in the Commonwealth’s 

prosecution of Appellee for the 2002 incident: criminal complaint, criminal 

information, plea order, and sentencing order. 
J-S13012-18

- 5 -

Trooper Vanvolkenburg also testified regarding a second prior 

conviction, which stemmed from a 2004 dispute between Appellee and his exgirlfriend. Trooper Vanvolkenburg explained that after she had a dispute with 

Appellee in the car, Appellee’s ex-girlfriend exited the vehicle, flagged down 

another vehicle, and asked that vehicle’s driver to drive her away. Appellee

subsequently backed into the vehicle his ex-girlfriend entered multiple times. 

The Commonwealth charged Appellee with two counts each of aggravated 

assault, simple assault, recklessly endangering another person (“REAP”), and

harassment, and one count each of criminal mischief, lack of registration and 

title to vehicle, careless driving, and reckless driving. Trooper Vanvolkenburg 

explained Appellee entered a guilty plea to two counts each of simple assault 

and REAP, and one count of criminal mischief. The Commonwealth then

introduced and the court admitted Exhibit 6, which contained the complaint, 

criminal information, plea order, and sentencing order in the prosecution of

the 2004 episode. 

The third prior conviction Trooper Vanvolkenburg testified to stemmed 

from a 2010 bar fight, during which Appellee struck the victim in the face. 

The Commonwealth charged Appellee with simple assault, harassment, and 

disorderly conduct. Appellee later entered a guilty plea to one count each of 

simple assault and disorderly conduct. After Trooper Vanvolkenburg’s 

testimony, the Commonwealth introduced and the court admitted Exhibit 7, 

which contained, inter alia, the following documents in the criminal case 
J-S13012-18

- 6 -

arising from the 2010 episode: complaint, criminal information, plea order,

and sentencing order. At trial, Appellee failed to object to Trooper 

Vanvolkenburg’s testimony regarding all three prior convictions and the 

court’s admission of Exhibits 5, 6, and 7 into evidence.

Next, Tonya Butler testified. Ms. Butler is an emergency room nurse 

who treated Victims 1 and 2 following the altercation with Appellee. Ms. Butler 

stated Victim 1 appeared to have memory loss as a result of the fight, because 

he repeatedly asked for the whereabouts of his wife, Victim 2. Ms. Butler also 

stated that Victim 1 suffered a broken nose, a concussion, and contusions on

the side of his head and face. 

Dr. Waldemar Szczupak, the emergency room doctor who treated 

Victims 1 and 2, testified as an expert in emergency medicine, specifically 

relating to the treatment of assault victims. Dr. Szczupak stated Victim 1 

presented at the hospital with a nasal fracture, swelling on his face and head 

from contusions, and a serious concussion. Dr. Szczupak characterized Victim 

1’s injuries from the altercation as severe. 

Appellee also testified at trial. Appellee stated that when he left the bar, 

he saw Ms. Snyder and Victim 2 arguing. Appellee said he watched Victim 2 

raise a beer bottle in a manner indicating she was going to hit Ms. Snyder with 

the bottle. Appellee explained Ms. Snyder “took [Victim 2] to the ground” and 

began hitting her. Appellee testified Victim 1 then jumped on Ms. Snyder’s 

back, which prompted Appellee to yell at Victim 1 to get off Ms. Snyder. When 
J-S13012-18

- 7 -

Victim 1 did not comply, Appellee struck Victim 1 in the head. Appellee 

testified Victim 1 subsequently grabbed Ms. Snyder again, and Appellee again 

told Victim 1 to let Ms. Snyder go. Appellee struck Victim 1 in the head a 

second time, when Victim 1 failed to comply. Appellee stated when the same 

pattern of events occurred a third time, he kicked Victim 1 once in the head, 

and left the premises with Ms. Snyder. Appellee explained he struck Victim 1

merely to protect Ms. Snyder. 

During cross-examination, the Commonwealth attempted to elicit 

testimony from Appellee regarding his prior criminal cases. Before Appellee 

responded, the court interjected and called for a side bar. Following the side 

bar discussion, the court stated on the record: “Strangely [Appellee’s counsel] 

is not objecting, but I would believe that it is improper and laying ground for 

PCRA to have, retry these cases that were in the past. They came in without 

objection..., I’m just expressing a concern about possible serious errors on the 

part of the record.” (N.T. Trial, 5/8/14, at 103-04). After further side-bar 

discussion, the Commonwealth changed the line of questioning and moved on. 

Finally, Ms. Snyder testified. Ms. Snyder stated Victim 1 did not 

physically interact with her during the altercation. 

On May 8, 2014, the jury convicted Appellee of one count each of 

aggravated assault and simple assault. That same day, the court convicted 

Appellee of harassment, a summary offense. The court sentenced Appellee 

on June 10, 2014, to an aggregate term of seventy-two (72) to one-hundred-
J-S13012-18

- 8 -

fifty (150) months’ incarceration. This Court affirmed the judgment of 

sentence on May 22, 2015. See Commonwealth v. Grover, No. 1708 WDA 

2014, unpublished memorandum (Pa.Super. filed May 22, 2015). Appellee 

sought no further direct review. 

On May 20, 2016, Appellee timely filed his first pro se PCRA petition. In 

his petition, Appellee alleged trial counsel was ineffective for, inter alia, failing

to object to: Trooper Vanvolkenburg’s testimony regarding Appellee’s prior 

criminal cases; and the Commonwealth’s presentation of Exhibits 5, 6, and 7

as evidence. The PCRA court appointed counsel, who subsequently filed an 

amended PCRA petition on September 6, 2016. The PCRA court conducted an 

evidentiary hearing on May 1, 2017. On August 10, 2017, the PCRA court 

granted Appellee relief, vacated the judgment of sentence, and ordered a new 

trial. The Commonwealth filed a timely notice of appeal on August 28, 2017. 

The PCRA court ordered the Commonwealth on August 31, 2017, to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b); the Commonwealth timely complied on September 12, 2017. 

The Commonwealth raises the following issues for our review:

DID THE PCRA COURT COMMIT AN ERROR OF LAW WHEN 

IT CONCLUDED THAT TRIAL COUNSEL WAS INEFFECTIVE 

FOR FAILING TO OBJECT TO THE TESTIMONY OF THE 

INVESTIGATING OFFICER ON THE BASIS THAT THE 

OFFICER HAD NO PERSONAL KNOWLEDGE OF [APPELLEE]’S 

PRIOR CONVICTIONS DESPITE TESTIMONY FROM THE 

OFFICER THAT HE WAS FAMILIAR WITH THE PREVIOUS 

CASES AGAINST [APPELLEE]?

DID THE PCRA COURT COMMIT AN ERROR OF LAW WHEN 
J-S13012-18

- 9 -

IT CONCLUDED THAT TRIAL COUNSEL WAS INEFFECTIVE 

FOR FAILING TO OBJECT TO EXHIBITS THAT PERTAINED TO 

[APPELLEE]’S PRIOR CONVICTIONS FOR ASSAULTIVE 

BEHAVIOR WHERE THE SUPERIOR COURT HAD ALREADY 

RULED THAT THE “TRIAL COURT PROPERLY ADMITTED” THE 

SAME IN ITS OPINION OF MAY 22, 2015[?]

DID THE PCRA COURT COMMIT AN ERROR OF LAW WHEN 

IT CONCLUDED THAT TRIAL COUNSEL WAS INEFFECTIVE 

FOR FAILING TO OBJECT TO [APPELLEE]’S PRIOR 

CONVICTIONS OF ASSAULTIVE BEHAVIOR, THEREBY 

FINDING PREJUDICE TO [APPELLEE], WHERE: (A.) THE 

EVIDENCE WAS PROPERLY ADMITTED UNDER PA.R.E. 

404(A)(2) AND 404(B)(2); (B.) THE JURY WAS ADVISED OF 

THE OFFENSES TO WHICH [APPELLEE] PLED GUILTY; (C.) 

THE TRIAL COURT GAVE AN APPROPRIATE LIMITING 

INSTRUCTION; AND (D.) FAILURE TO OBJECT WAS 

HARMLESS ERROR IN LIGHT OF THE OVERWHELMING 

EVIDENCE OF [APPELLEE]’S GUILT?

(Commonwealth’s Brief at 2). 

In its issues combined, the Commonwealth argues Trooper 

Vanvolkenburg’s testimony regarding Appellee’s prior criminal cases was 

admissible under Pa.R.E. 404(a)(2), 404(b)(2), and 602, and the court gave

the jury a sufficient limiting instruction regarding those prior cases. The 

Commonwealth submits Appellee did not suffer undue prejudice from the 

admission of the prior bad acts evidence to call the verdict into question. The 

Commonwealth posits that even if the evidence of Appellee’s prior criminal 

cases was improperly admitted, trial counsel’s failure to object does not 

constitute ineffective assistance, where admission of the evidence was 

harmless error in light of the overwhelming properly admitted evidence of 

Appellee’s guilt. The Commonwealth concludes this Court should reverse the 
J-S13012-18

- 10 -

PCRA court’s order vacating the judgment of sentence and granting Appellee 

a new trial. We agree.

Our standard of review of the grant or denial of a PCRA petition is limited 

to examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. Commonwealth 

v. Conway, 14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 

29 A.3d 795 (2011). This Court grants great deference to the findings of the

PCRA court if the record contains any support for those findings. 

Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal 

denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, 

however, to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 

1190, 1194 (Pa.Super. 2012). 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). Under the 

traditional analysis, to prevail on a claim of ineffective assistance of counsel, 

a petitioner bears the burden to prove his claims by a preponderance of the 

evidence. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), 

appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must 

demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had 

no reasonable strategic basis for the asserted action or inaction; and (3) but 

for the errors and omissions of counsel, there is a reasonable probability that 

the outcome of the proceedings would have been different. Id. See also
J-S13012-18

- 11 -

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). 

The actual prejudice required under Strickland/Pierce2is a higher 

standard than the harmless error analysis typically applied to allegations of 

trial court errors. Commonwealth v. Gribble, 580 Pa. 647, 676, 863 A.2d 

455, 472 (2004). 

Prejudice is established when [a defendant] demonstrates

that counsel’s chosen course of action had an adverse effect

on the outcome of the proceedings. The defendant must 

show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the

outcome. In [Kimball, supra], we held that a criminal 

defendant alleging prejudice must show that counsel’s

errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable. 

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) 

(internal citations and quotation marks omitted). In other words, the “actual 

prejudice” standard is, as a general and practical matter, a more exacting 

standard, when litigated through the lens of counsel ineffectiveness, which 

makes it more difficult for the defendant to prevail. Gribble, supra at 676, 

863 A.2d at 472. Under the Pierce prejudice standard, the petitioner must

show that counsel’s conduct had an actual adverse influence on the outcome 

of the proceedings because, in a collateral attack, we “presume counsel is 

____________________________________________

2 Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 

L.Ed.2d 674, ___ (1984); Commonwealth v. Pierce, 537 Pa. 514, 524, 645 

A.2d 189, 194 (1994). 
J-S13012-18

- 12 -

effective, and that not every error by counsel can or will result in a 

constitutional violation of a defendant's Sixth Amendment right to counsel.” 

Commonwealth v. Howard, 538 Pa. 86, 100, 645 A.2d 1300, 1307 (1994). 

In determining prejudice in the context of ineffective assistance of 

counsel, a court “must consider the totality of the evidence before the judge 

or jury.” Commonwealth v. Simmons, 569 Pa. 405, 430, 804 A.2d 625, 

640 (2001). “If it is clear that the prejudice prong cannot be met, the claim 

may be dismissed on that basis alone and there is no need to examine the 

other two prongs.” Commonwealth v. Arroyo, 555 Pa. 125, 144, 723 A.2d 

162, 171 (1999). See also Commonwealth v. Steele, 599 Pa. 341, 360, 

961 A.2d 786, 797 (2008) (stating: “Where it is clear that a petitioner has 

failed to meet any of the three, distinct prongs of the [ineffective assistance 

of counsel] test, the claim may be disposed of on that basis alone, without a 

determination of whether the other two prongs have been met”). 

Instantly, the jury heard testimony from several other witnesses who 

described Appellee’s assault on Victim 1. Both Victim 2 and Mr. Huff explained 

Appellee punched and kicked Victim 1. Victim 2 also stated Appellee continued 

to attack Victim 1 after he fell unconscious. Mr. Huff added Appellee knocked 

Victim 1 to the ground and kicked Victim 1 in the upper body while Victim 1

assumed a defensive posture. Trooper Mincer, the responding officer, 

explained he interviewed eyewitnesses to the altercation and identified 

Appellee and Ms. Snyder as suspects. Dr. Szczupak, who treated Victim 1 
J-S13012-18

- 13 -

after the fight, testified Victim 1’s injuries were severe and consistent with 

repeated blows to the head. Notably, Appellee conceded he struck Victim 1 

several times during the altercation. Appellee testified he did not start the 

fight, but he did hit Victim 1 because Victim 1 had allegedly attacked Ms. 

Snyder. Ms. Snyder, however, unequivocally testified that Victim 1 made no 

physical contact with her throughout the ordeal. 

Viewing the prejudice question under the proper standard, the totality 

of admissible evidence overwhelmingly demonstrated Appellee’s guilt, 

notwithstanding trial counsel’s failure to object to Appellee’s prior bad acts. 

See Chambers, supra; Simmons, supra. Given the strength of the 

Commonwealth’s evidence as a whole against Appellee, we conclude Appellee 

failed to satisfy his burden to prove trial counsel’s omission had an actual 

adverse effect on the jury’s verdict, to warrant a new trial. See Chambers, 

supra; Gribble, supra. Based on the foregoing, Appellee’s claim of 

ineffective assistance of counsel fails. See Arroyo, supra. Accordingly, we 

vacate the PCRA court’s order granting Appellee a new trial and reinstate the 

judgment of sentence. 

Order vacated; judgment of sentence reinstated. 
J-S13012-18

- 14 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/7/2019