J-S16037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BARRY E. GROVE

Appellant No. 1135 MDA 2014

Appeal from the Judgment of Sentence March 12, 2014

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0000873-2013

BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED JULY 28, 2015

Barry E. Grove appeals the judgment of sentence entered March 12, 

2014, in the Centre County Court of Common Pleas. The trial court imposed 

a sentence of five to 10 years’ imprisonment following Grove’s non-jury 

conviction of one count of persons not to possess firearms, 18 Pa.C.S. § 

6105.1 On appeal, Grove argues the trial court erred in rejecting his 

challenges to the conviction based upon the retroactive application of the 

law, as well as various violations of both the Pennsylvania and United States 

Constitutions. Grove also contends the trial court erred in concluding 

Section 6105 is a strict liability statute, and by granting the 

Commonwealth’s motion in limine, so that he was essentially precluded from 

____________________________________________

1 Grove’s disqualifying offense was a 1978 conviction of criminal trespass, 

graded as a second degree felony.
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presenting an affirmative defense that he was unaware he was prohibited 

from possessing a firearm. Lastly, Grove claims the trial court abused its 

discretion in revoking his bail after his non-jury conviction, and denying both 

a motion for reinstatement of bail pending appeal, and a motion for bail for 

emergency medical treatment. Upon our thorough review of the record, the 

parties’ briefs, and the relevant statutory and case law, we affirm Grove’s 

judgment of sentence.

The facts underlying Grove’s conviction are undisputed. On April 23, 

2013, at around noon, Grove’s neighbor, Sherry McCloskey, noticed Grove’s 

car parked at the Riverfront, a local bar. Later that evening, at 

approximately 6:00 p.m., McCloskey was at her parents’ residence located 

across the road from her home, when she heard a car door shut, and 

observed Grove’s vehicle parked at the bottom of her driveway. A few 

seconds later, she heard one gunshot, followed by Grove’s dog, Annie, 

crying. When McCloskey realized Grove had shot Annie in her yard, she 

immediately called the police. N.T., 1/24/2014, at 20, 22-23. 

About 20 minutes later, before the police arrived, Grove loaded the 

crying dog in his vehicle and dumped the body in a field behind his home. 

Id. at 23. When a state trooper arrived to investigate, Grove told the officer 

he shot his dog because it had killed some of his chickens. Grove took the 

officer to the dog, which was still alive, and the officer “had to shoot the dog 

to put it out of its misery.” Id. at 41. Another responding trooper stated, 

“[I]t was evident that [Grove] had been drinking” because he could 
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“definitely smell the odor of an alcoholic beverage.” Id. at 57. Upon a 

check of Grove’s criminal history, the troopers learned that Grove had pled 

guilty to one count of criminal mischief, graded as a second degree felony, 

on June 16, 1978.

Grove was subsequently charged with one count of persons not to 

possess firearms. After he waived his right to a preliminary hearing, the 

Commonwealth added a charge of cruelty to animals. See 18 Pa.C.S. § 

5511(a)(2.1)(A). The trial court later severed the animal cruelty charge 

from the firearms charge.2

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 

____________________________________________

2 Grove later entered a guilty plea to one count of cruelty to animals on 

March 12, 2014, and was sentenced, that same day, to a term of nine 

months to two years’ imprisonment. See Order, 3/12/2014.
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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 

entered an order denying Grove’s motions to dismiss, and granting the 

Commonwealth’s motion in limine.

3

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

and proceeded to a bench trial 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 motion of the Commonwealth, the trial 

court revoked Grove’s bail. Thereafter, Grove filed both a petition for bail 

pending appeal, and a motion for bail for emergency medical treatment.4 

____________________________________________

3 Specifically, the trial court precluded Grove from presenting any evidence 

that: (1) he did not know his prior conviction prevented him from owning a 

firearm; (2) at the time of his 1978 conviction, he was not precluded from 

owning a firearm; (3) the Commonwealth never notified him when the law 

changed; (4) he had contacts with the police since the law changed and no 

one informed him of his ineligibility; (5) the firearms charge is a felony with 

the possibility of a significant prison sentence; and (6) he was originally 

charged with burglary in the underlying offense but the charge was dropped. 

See Order, 1/23/2014. 

Grove also provided the court with seven proposed jury instructions, 

which reinforced his argument that he was unaware of the illegality of his 

actions. In an order entered January 23, 2014, the trial court declined to 

accept Grove’s proposed instructions.

4 Grove suffered from an inguinal hernia, that he characterized as an “acute 

medical condition which require[d] immediate surgery.” Motion for Bail for 

Emergency Medical Treatment, 2/13/2014, at ¶ 11.
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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 5, 2014, this Court directed the trial court to 

state on the record its reasons for denying bail. See Order, 3/5/2014. The 

trial court complied with this Court’s directive and, on March 21, 2014, this 

Court entered an order denying review of the trial court’s decision to deny 

bail pending appeal. However, as to the trial court’s denial of bail for 

emergency medical treatment, this Court directed the trial court to either 

grant bail for medical treatment or state its reasons for denying bail on the 

record. See Order, 3/21/2014. On March 25, 2014, the trial court 

responded to this Court’s directive and stated that Grove’s petition for bail 

for emergency medical treatment was “moot” because he entered a guilty 

plea to the charge of cruelty to animals and would soon be transported to 

“SCI Camp Hill for diagnostic classification.” Response to Superior Court’s 

Directive, 3/25/2014. On April 2, 2014, this Court entered another order, 

directing the trial court, within 48 hours, to explain how Grove’s petition 
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could be moot when the trial court could not “confirm [Grove’s] 

whereabouts, definite plans for his transfer to SCI-Camp Hill, or any 

immediate plans to address his emergency medical issues.” Order, 

4/2/2014. 

Once again, the trial court filed a timely response to this Court’s 

directive. On April 3, 2014, the trial court noted: (1) Grove was scheduled 

to be transported to SCI-Camp Hill on April 10, 2014; (2) it placed reasons 

on the record for its denial of Grove’s bail requests during the February 20, 

2014, sentencing hearing; and (3) upon Grove’s examination by medical 

professionals at the Centre County Correctional Facility, “it was determined 

that because the hernia is not incarcerated and is reducible, it is [an] 

elective procedure.” Response to Superior Court’s Order, 4/3/2014. 

Thereafter, on April 10, 2014, this Court entered an order directing the trial 

court to conduct a hearing within 10 days, and issue findings of fact with 

respect to the medical necessity of Grove’s application for bail.5 See Order, 

4/10/2014. The trial court conducted a hearing, and subsequently entered 

an order, on April 17, 2014, denying Grove’s petition for bail. The court 

explained Grove would be “furloughed on April 29, 2014, to the Gray’s 

Woods Surgical Center for purposes of injuinal hernia repair[,]” and the 

____________________________________________

5 This Court recognized that many of the documents submitted by Grove in 

support of his application in the Superior Court were not part of the certified 

record before the trial court.
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Centre County Correctional Facility would perform all of Grove’s preoperative 

tests. Order, 4//17/2014. 

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

hearings on Grove’s post-sentence motions.6 On June 16, 2014, the trial 

court entered an order denying Grove’s post-sentence motions. This timely 

appeal follows.7

The bulk of Grove’s claims on appeal emphasize the inherent 

unfairness and purported unconstitutionality of Grove’s prosecution of 

persons not to possess firearms based upon a disabling conviction that 

occurred prior to the enactment of the current version of the statute. 

Accordingly, the following background is necessary to our discussion. 

On June 16, 1978, Grove entered a guilty plea to one count of criminal 

trespass, graded as a felony of the second degree.8 Although he was 

____________________________________________

6 During the June 12, 2014, hearing, Grove testified that sometime during 

March or April of 2012, his prison physician discovered that Grove also 

suffered from stage four prostate cancer. See N.T., 6/12/2014, at 5. At the 

June 14, 2012, hearing, Dr. Theodoor Voorstad, from the Camp Hill 

correctional facility, testified Grove was scheduled to meet with an oncologist 

the following day. See N.T., 6/14/2014, at 4. 

7 On July 15, 2014, the trial court ordered Grove to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Grove

complied with the court’s directive and filed a concise statement on July 28, 

2014.

8 See 18 Pa.C.S. § 3503(a)(1)(ii), (2) (grading criminal trespass as a second 

degree felony when “[a] person ... knowing that he is not licensed or 

privileged to do so, ... breaks into any building or occupied structure or 

separately secured or occupied portion thereof.”). 
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originally also charged with burglary and attempted theft, the 

Commonwealth nol prossed those charges, noting there was “[i]nsufficient 

evidence of requisite intent.” Motion to Dismiss, 1/8/2014, Exhibit A. At the 

time of Grove’s plea, Section 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 under his control.” 18 

Pa.C.S. § 6105 (1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 

1973) (emphasis supplied). Further, 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[.]

18 Pa.C.S. § 6102 (1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 

1973). Therefore, under the clear terms of the Crimes Code, at the time of 

Grove’s criminal mischief conviction, Grove was not precluded from owning 

or possessing a firearm.

However, in 1995, the Pennsylvania Legislature amended Section 6105 

to read, substantially, as it does today. Now, Section 6105 precludes 

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

violence, from possessing or using a firearm. The statute provides, in 

relevant part, as follows: 

(a) Offense defined.--
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(1) A person who has been convicted of an offense 

enumerated in subsection (b), within or without this 

Commonwealth, regardless of the length of sentence or 

whose conduct meets the criteria in subsection (c) shall 

not possess, use, control, sell, transfer or manufacture or 

obtain a license to possess, use, control, sell, transfer or 

manufacture a firearm in this Commonwealth.

* * * *

(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.

18 Pa.C.S. § 6105(a)(1), (b). Accordingly, as of the effective date of the 

amendment, Grove was prohibited from owning or possessing a firearm 

based upon his 1978 conviction of criminal trespass.9 

____________________________________________

9 We note the statute does provide a person convicted of a disabling crime 

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

imposition of the disability ..., 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.” 18 Pa.C.S. § 6105(a)(2)(i). This Court has interpreted 

subsection (a)(2)(i) to be an affirmative defense, placing the burden upon 

the defendant to prove he never had a reasonable opportunity to dispose of 

his firearms. See Commonwealth v. Alvarez-Herrera, 35 A.3d 1216, 

1219 (Pa. Super. 2011) (holding Commonwealth did not have the burden to 

prove that defendant had a reasonable opportunity to dispose of firearms 

after it was established he was an illegal alien, and defendant presented no 

evidence to support affirmative defense). Moreover, the 60-day period 

begins to run on the date the defendant is convicted of the disabling offense. 

Commonwealth v. Appleby, 856 A.2d 191, 194 (Pa. Super. 2004) (“Under 

[S]ection 6501, conviction of an enumerated offense (including aggravated 

assault) imposes upon a defendant the disability to possess, use, control, 

sell, transfer or manufacture a firearm-not a guilty plea, not sentencing, not 

release from prison, but conviction.”) (emphasis in original).
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In his first issue, Grove contends that his prosecution constituted an 

improper retroactive application of the law. As this issue involves a pure 

question of law, our standard of review is de novo. Commonwealth v. 

Clegg, 27 A.3d 1266, 1269 (Pa. 2011). 

The Statutory Construction Act plainly states “[n]o statute shall be 

construed to be retroactive unless clearly and manifestly so intended by the 

General Assembly.” 1 Pa.C.S. § 1926. However, 

“...a law is only retroactive in its application when it relates back 

and gives a previous transaction a legal effect different from that 

which it had under the law in effect when it transpired.” 

Where ... no vested right or contractual obligation is involved, an 

act is not retroactively construed when applied to a condition 

existing on its effective date even though the condition results 

from events prior to that date ... ‘[A] statute is not regarded as 

operating retroactively because of the mere fact that it relates to 

antecedent events, or draws upon antecedent facts for its 

operation.’

A “vested right” is one that “so completely and definitely belongs 

to a person that it cannot be impaired or taken away without the 

person's consent.” 

In re R.T., 778 A.2d 670, 679 (Pa. Super. 2001) (citations omitted), appeal 

denied, 792 A.2d 1254 (Pa. 2001).

Furthermore, while an individual has a constitutional right to own or 

possess a firearm, 

like many other constitutional rights, it is not beyond regulation. 

See Lewis [v. United States, 445 U.S. 55, 65 n.8, 100 S.Ct. 

915, 63 L.Ed.2d 198 (1980)] (“These legislative restrictions 

[preventing convicted felons from possessing firearms] are 

neither based on constitutionally suspect criteria, nor do they 

trench upon any constitutionally protected liberties.”); see also 

Gardner v. Jenkins, 116 Pa.Cmwlth. 107, 541 A.2d 406, 409 
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(1988) (“The right to bear arms, although a constitutional right, 

is not unlimited and may be restricted in the exercise of the 

police power for the good order of society and protection of the 

citizens.”). 

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

Here, Grove argues that when he was convicted of criminal trespass, 

he was not prohibited from possessing a firearm, and it was only after the 

Legislature amended the statute in 1995, that his prior conviction imposed a 

disability. Furthermore, he asserts he was not advised that the law had 

changed, or that his continued possession of a firearm was no longer 

permissible. Therefore, he contends the trial court improperly applied the 

statute retroactively to punish him for his past conviction. 

The Commonwealth asserts, however, that the statute was not applied 

retroactively. Grove was convicted based upon his possession of a firearm 

on April 23, 2013, not as an additional punishment for his prior conviction 

of criminal trespass. We agree.

As noted supra, “an act is not retroactively construed when applied to 

a condition existing on its effective date even though the condition results 

from events prior to that date.” R.T., supra, 778 A.2d at 679 (citation 

omitted). In the present case, although Grove was convicted of criminal 

trespass 17 years before the statute 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. Indeed, Grove’s prior 
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conviction was simply a condition precedent to the present conviction. 

Accordingly, his first issue fails.10

In a related claim, Grove also contends his present prosecution 

constitutes an ex post facto application of the law.

Both the federal and state constitutions prohibit the enactment of ex 

post facto laws. See U.S. Const. Art. I, § 8; Pa. Const. Art. I, § 17. 

Generally, a statute, or application thereof, will be considered invalid as an 

ex post facto law if one of the following four factors is present: 

(1) The law makes an act criminal which was not criminal when 

done; (2) The law aggravates a crime, or makes it greater than 

it was when committed; (3) The law changes a punishment, and 

makes it greater than it was when the punishable act was 

committed; and (4) The law alters the rules of evidence and 

requires less or different testimony than the law required at the 

time the offense was committed, in order to convict. 

Commonwealth v. Riley, 384 A.2d 1333, 1335 (Pa. Super. 1978) (en 

banc) (citations omitted). See also Calder v. Bull, 3 U.S. 386, 390 (1798). 

“[T]he standards applied to determine an ex post facto violation under the 

Pennsylvania Constitution and the United States Constitution are 

comparable.” Commonwealth v. Perez, 97 A.3d 747, 759 (Pa. Super. 

2014) (citation omitted).11

____________________________________________

10 As we will discuss infra, the Commonwealth was not required to notify 

Grove that the statute was amended to include his criminal trespass 

conviction as a disabling offense.

11 We note that Grove has failed to include in his brief an analysis of the 

factors set forth in Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 

(Footnote Continued Next Page)
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In the present case, Grove argues “the Commonwealth’s application of 

[Section 6105’s 1995 amendment] is unconstitutional as applied to him for 

his 1978 guilty plea to criminal trespass and constituted an illegal and 

impermissible ex post facto application of the current version of Section 

6105.” Grove’s Brief at 27-28. Relying on Weaver v. Graham, 450 U.S. 

24 (1981), Grove asserts a statute “violates the ex post facto clause if it is 

both retrospective and more onerous than the law in effect on the date of 

the offense.” Id. at 33. 

In Weaver, the United States Supreme Court considered whether “a 

Florida statute altering the availability of [] ‘gain time for good conduct’ 

[was] unconstitutional as an ex post facto law when applied to petitioner, 

whose crime was committed before the statute’s enactment.” Weaver, 

supra, 450 U.S. at 25 (footnote omitted). In that case, the defendant was 

sentenced to a 15-year prison term in May of 1976. Two years later, in 

1978, the Florida Legislature enacted a statute which provided a new 

formula for an incarcerated defendant’s gain-time deductions. By its terms, 

the new statute applied “not only to prisoners sentenced for crimes 

committed since its enactment in 1978, but also to all other prisoners, 

(Footnote Continued) _______________________

1991), in order to demonstrate that the Pennsylvania Constitution affords 

greater protection against the enactment of ex post facto laws than the 

United States Constitution. Accordingly, any claim to the contrary fails. 

Perez, supra, 97 A.3d at 760. 
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including petitioner, whose offenses took place before that date.” Id. at 27 

(footnote omitted). 

In considering whether the statute violated the ex post facto clause, 

the Supreme Court explained that “two critical elements must be present for 

a criminal or penal law to be ex post facto: it must be retrospective, that is, 

it must apply to events occurring before its enactment, and it must 

disadvantage the offender affected by it.” Id. at 29. While recognizing the 

law at issue was not retrospective on its face because it applied only after its 

effective date, the Court explained that “[t]he critical question is whether 

the law changes the legal consequences of acts completed before its 

effective date.” Id. at 31. Because the Florida penal statute at issue 

“substantially alter[ed] the consequences attached to a crime already 

completed, and therefore change[d] the ‘quantum of punishment[,]’” the 

Supreme Court held it was retrospective. Id. Furthermore, because “the 

new provision constrict[ed] the inmate’s opportunity to earn early release,” 

and the Court also concluded the statute made “more onerous the 

punishment for crimes committed before its enactment” and, therefore, 

“[ran] afoul of the prohibition against ex post facto laws.” Id. at 36.

We find Grove’s reliance on Weaver misplaced. As explained in our 

prior discussion of Grove’s retroactivity claim, the 1995 amendment to 

Section 6105 did not criminalize behavior that occurred before its passage; 

rather, the statute criminalized Grove’s subsequent possession of a firearm 

in April of 2013, 18 years after the amendment was enacted. Moreover, 
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contrary to Grove’s contention, we do not find that Grove’s prosecution 

imposed an additional punishment for his prior crime. Again, Grove was 

prosecuted based upon his 2013 possession of a firearm, not based upon his 

1978 conviction of criminal trespass. 

The federal circuit courts have considered, and rejected, analagous ex 

post facto claims with regard to prosecutions under amendments to the Gun 

Control Act (“GCA”) of 1968, 18 U.S.C. §§ 921-931. Similar to Section 

6105, the GCA, inter alia, prohibits certain persons, including those 

convicted of a crime punishable by imprisonment for a term exceeding one 

year and those convicted of a misdemeanor crime of domestic violence, from 

possessing a firearm. See 18 U.S.C. § 922(g)(1), (9). In U.S. v. Brady, 

26 F.3d 282 (2d Cir. 1994), cert. denied, 513 U.S. 894 (1994), the Second 

Circuit Court of Appeals rejected a defendant’s claim that his conviction for 

possessing a firearm in June of 1992 violated the ex post facto clause 

because his predicate offense was a 1951 conviction. The Court held:

[The defendant] violated section 922(g) long after it became the 

law. Section 922(g) became effective in 1986. [The defendant’s] 

possession of a gun from which the current conviction arises 

occurred on June 10, 1992. Regardless of the date of [his] prior 

conviction, the crime of being a felon in possession of a firearm 

was not committed until after the effective date of the statute 

under which he was convicted. By 1992 [the defendant] had 

more than adequate notice that it was illegal for him to possess 

a firearm because of his status as a convicted felon, and he 

could have conformed his conduct to the requirements of the 

law. Therefore, the Ex Post Facto clause was not violated by the 

use of a 1951 felony conviction as a predicate for a violation of § 

922(g).
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Id. at 291 (footnoted omitted).

The Fourth Circuit Court of Appeals reached the same conclusion in 

U.S. v. Mitchell, 209 F.3d 319 (4th Cir. 2000), cert. denied, 531 U.S. 849 

(2000). In that case, the defendant was convicted in June of 1996 of a 

misdemeanor assault charge for an incident of domestic violence. He had 

purchased a handgun four months earlier. In September of 1996, Congress 

amended the GCA to make it illegal for persons convicted of misdemeanor 

domestic violence crimes to possess a firearm. See 18 U.S.C. § 922(g)(9). 

Thereafter, in July of 1998, while the police were investigating another 

incident of domestic violence, they searched Mitchell’s home and found the 

firearm he had owned for two years. He was subsequently charged with a 

violation of Subsection (g)(9). See Mitchell, supra, 209 F.3d at 321. 

On appeal, Mitchell argued, inter alia, that his prosecution under 

Section 922(g) violated the ex post facto clause because “both his firearm 

purchase and misdemeanor domestic violence conviction occurred prior to § 

922(g)(9)’s enactment.” Id. at 322. In rejecting this claim, the Fourth 

Circuit opined:

It is immaterial that Mitchell’s firearm purchase and domestic 

violence conviction occurred prior to § 922(g)(9)’s enactment 

because the conduct prohibited by § 922(g)(9) is the possession 

of a firearm. See, e.g., United States v. Boyd, 52 F.Supp.2d 

1233, 1236-37 (D.Kan.1999) (“This court, as have all others 

deciding such a challenge, have concluded that ... the illegal act 

in § 922(g)(9) is the possession of the firearm, not the 

misdemeanor domestic violence conviction....”); National Ass'n 

of Gov't Employees v. Barrett, 968 F.Supp. 1564, 1575-76 

(N.D.Ga.1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 
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(11th Cir.1998). As it is undisputed that Mitchell possessed the 

firearm after the enactment of § 922(g)(9), the law’s application 

to Mitchell does not run afoul of the ex post facto prohibition.

Courts addressing similar ex post facto challenges to § 922(g)(9) 

have all agreed with this conclusion. See, e.g., Boyd, 52 

F.Supp.2d at 1236-37; McHugh v. Rubin, 49 F.Supp.2d 105, 

108 (E.D.N.Y.1999); United States v. Hicks, 992 F.Supp. 

1244, 1245-46 (D.Kan.1997); United States v. Meade, 986 

F.Supp. 66, 69 (D.Mass.1997), aff’d, 175 F.3d 215 (1st 

Cir.1999); Barrett, 968 F.Supp. at 1575-76. Analogous ex post 

facto challenges to other similarly worded firearm possession 

crimes have also failed. See, e.g., United States v. D'Angelo, 

819 F.2d 1062, 1065-66 (11th Cir.1987) (Defendant “was in 

possession of the pistol after the enactment of the statute. Proof 

of [defendant’s] possession obviated the need for proof of the 

date [defendant] received the pistol.”); United States v. 

Brady, 26 F.3d 282, 290-91 (2d Cir.1994); United States v. 

Gillies, 851 F.2d 492, 495 (1st Cir.1988).

Id. at 322-323. See also United States v. Pfeifer, 371 F.3d 430, 436 

(8th Cir. 2004) (rejecting ex post facto challenge to conviction under Section 

922(g)(9), stating “[t]he critical factor in these decisions is that the 

prohibited conduct-possession of a firearm-occurred after enactment of the 

statute.”).

We acknowledge that the holdings of our federal circuit courts are not 

binding authority on this Court. Commonwealth v. Orie, 88 A.3d 983, 

1013 n.49 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d 925 

(Pa. 2014). Nevertheless, it is well-established that those decisions “may 

serve as persuasive authority in resolving analogous cases.” 

Commonwealth v. Haskins, 60 A.3d 538, 548 n.9 (Pa. Super. 2012) 

(citation omitted), appeal denied, 78 A.3d 1090 (Pa. 2013). Because the 

relevant provisions of the GCA and Section 6105 are sufficiently similar for 
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purposes of an ex post facto challenge, and we agree with the analysis of 

the Second and Fourth Circuit Court of Appeals, we find Grove’s ex post 

facto argument fails.

Next, Grove raises three additional constitutional challenges to the 

statute. He asserts (1) the punishment attached to his crime is so punitive 

that it constitutes cruel and unusual punishment;12 (2) his prosecution for 

violating Section 6105 contravenes due process because he was not notified 

of the 1995 amendment to the law;13 and (3) the retroactive application of 

Section 6105 stripped him of his constitutional right to bear arms.14 See

Grove’s Brief at 29-31. We will address these claims seriatim.

Both the United States and Pennsylvania Constitutions prohibit the 

imposition of cruel and unusual punishment. See U.S. Const. Amend. VIII; 

Pa. Const. Art. I, § 13. It is well-settled that “these constitutional provisions 

are coterminous, [and] we need only engage in an Eighth Amendment 

review.” Commonwealth v. Thompson, 106 A.3d 742, 763 (Pa. Super. 

2014). 

Preliminarily, we note “the Eighth Amendment does not require strict 

proportionality between crime and sentence. Rather, it forbids only extreme 

____________________________________________

12 U.S. Const. Amend. VIII; Pa. Const. Art. I, § 13.

13 U.S. Const. Amend. V; Pa. Const. Art. I, § 9.

14 U.S. Const. Amend. II; Pa. Const. Art. I, § 21.
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sentences which are grossly disproportionate to the crime.” 

Commonwealth v. Elia, 83 A.3d 254, 268 (Pa. Super. 2013) (citations 

omitted), appeal denied, 94 A.3d 1007 (Pa. 2014). When considering a 

statute’s constitutionality under the Eighth Amendment, this Court adopted a 

three-part proportionality test set forth in Commonwealth v. Spells, 612 

A.2d 458 (Pa. Super. 1992) (en banc), appeal dismissed as improvidently 

granted, 643 A.2d 1078 (Pa. 1994),:

Specifically, we concluded the following criteria should govern 

such an analysis: “(i) the gravity of the offense and the 

harshness of the penalty; (ii) the sentences imposed on other 

criminals in the same jurisdiction; and (iii) the sentences 

imposed for commission of the same crime in other 

jurisdictions.” Id. at 462, quoting Solem v. Helm, 463 U.S. 

277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); accord 

[Commonwealth v.] Baker, [78 A.3d 1044,] 1047 [(Pa. 

2013)]. Although no single factor is dispositive, the court’s 

findings relative to the first factor may determine whether a 

particular sentence is constitutional. Spells, supra at 463; 

accord Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 

2680, 115 L.Ed.2d 836 (1991); Solem, supra at 291 n. 17, 103 

S.Ct. 3001; Baker, supra. Therefore, courts should initially 

consider if “a sentence is grossly disproportionate to a crime.”

Spells, supra at 463, quoting Harmelin, supra; accord 

Baker, supra at 1048. In other words, “[we] must examine 

whether the punishment fits the crime.” [Commonwealth v.] 

Parker, [718 A.2d 1266,] 1269 [(Pa. Super. 1998)]. If the 

court concludes no such gross disproportionality exists, the 

sentence does not violate the Eighth Amendment. See Baker,

supra at 1052; Spells, supra at 463–464.

Thompson, supra, 106 A.3d at 764.

Here, Grove asserts that “under the specific circumstances which exist 

in [his] case,” his prosecution for a violation of Section 6105 constituted 

cruel and unusual punishment. Grove’s Brief at 31. Specifically, he 
J-S16037-15

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reiterates his argument that he was not prohibited from owning or 

possessing firearms at the time of his guilty plea in 1978, and he did not 

know of the change in the law that “would expose him to criminal 

prosecution and imprisonment for a number of years.” Id.

However, Grove’s argument does not address the three-part analysis 

set forth in Spells. Rather, Grove focuses on the purported inherent 

unfairness of punishing him for an act which he contends he did not know 

was illegal. Unfortunately, for Grove, it is a well-established legal maxim

that ignorance of the law is not a defense. Commonwealth v. Henderson, 

938 A.2d 1063, 1067 (Pa. Super. 2007), appeal denied, 954 A.2d 575 (Pa. 

2008). But see Commonwealth v. Kratsas, 764 A.2d 20, 31 (Pa. 2001) 

(holding due process reliance defense may serve “as an exception to the 

maxim that mistake of law is no defense”); Commonwealth v. Mohamud, 

15 A.3d 80, 85 (Pa. Super. 2010) (noting, “the general rule that citizens are 

presumed to know requirements of the law ... is not absolute, and may be 

abrogated when a law is so technical or obscure that it threatens to ensnare 

individuals engaged in apparently innocent conduct.”) (citation omitted). 

Because Grove cannot demonstrate that a five-year sentence for possession 

of a firearm by a person statutorily prohibited from doing so is “grossly 

disproportionate to the crime,” his Eighth Amendment challenge fails. 

Thompson, supra.
J-S16037-15

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Grove also contends his prosecution violated his constitutional right to 

due process of law pursuant to the Fifth Amendment of the United States 

Constitution, and Article I, Section 9 of the Pennsylvania Constitution. 

When considering a due process claim, we first note: 

A “due process inquiry, in its most general form, entails an 

assessment as to whether the challenged proceeding or conduct 

‘offends some principle of justice so rooted in the traditions and 

conscience of our people as to be ranked as fundamental’ and 

that ‘define[s] the community’s sense of fair play and decency.’ ” 

Commonwealth v. Kratsas, 564 Pa. 36, 764 A.2d 20, 27 

(2001) (citation omitted). While not capable of an exact 

definition, basic elements of procedural due process are 

adequate notice, the opportunity to be heard, and the chance to 

defend oneself before a fair and impartial tribunal having 

jurisdiction over the case. Commonwealth v. Thompson, 444 

Pa. 312, 281 A.2d 856, 858 (1971).

Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008). Moreover, 

similar to his prior claim, “the due process provision of the Pennsylvania 

Constitution does not provide greater protections than its federal 

counterpart.” Commonwealth v. Louden, 803 A.2d 1181, 1184 (Pa. 

2002).

Grove’s due process argument again focuses on his lack of knowledge 

that his 1978 conviction prohibited him from owning or possessing a firearm. 

He asserts: 

The Commonwealth failed to provide any notice or warning 

whatsoever to [Grove] that his theretofore legally acceptable 

behavior between 1978 and 1995 had suddenly become illegal in 

1995 with the passage of the new legislation and criminalized his 

behavior for possessing or using firearms without his knowledge 

thus exposing him to prosecution and a significant prison 
J-S16037-15

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sentence of five (5) to ten (10) years without providing any 

notice to him formally or informally. 

Grove’s Brief at 29.

Although Grove scatters due process concerns throughout his brief, he 

does not cite any case law or provide any further analysis with respect to 

this particular claim.15 For that reason, we find his argument waived. See 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. Super. 

2015) (“Because Appellant has failed to develop his argument or cite 

authority, he is not entitled to relief on his first claim.”).

Nevertheless, we note that the Sixth Circuit Court of Appeals in 

United States v. Young, 766 F.3d 621 (6th Cir. 2014), cert. denied, 135 S. 

Ct. 1475 (U.S. 2015), rejected a similar due process challenge to the federal 

GCA. 

In Young, the defendant argued that he lacked notice of the GCA’s 

prohibition against the possession of ammunition by felons. The Sixth 

Circuit Court of Appeals held that while “[i]t would be preferable for both 

state and federal courts to expressly inform felons of their legal disability ... 

[t]he Fifth Amendment notice requirement is satisfied by the statute.” 

Young, supra, 766 F.3d at 630. 

____________________________________________

15 Grove also raises a due process challenge in conjunction with his 

argument that Section 6105 does not impose strict liability. We will address 

that claim infra.
J-S16037-15

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We find the same reasoning applies here. See Haskins, supra. 

Grove knew he had been convicted of a felony, and knowingly possessed a 

firearm. Although his particular conviction did not prevent him from owning 

or possessing a firearm in 1978, the law had changed 18 years prior to his 

arrest in 2013. As we noted previously, ignorance of the law is not a 

defense. Henderson, supra. Accordingly, Grove’s due process claim fails. 

In his last constitutional challenge to Section 6105, Grove contends 

the “retroactive application of [the 1995 Amendment to Section 6105] ... 

stripped [him] of his fundamental constitutional right to bear arms[.]” 

Grove’s Brief at 29. Other than stating the law “stripped” him of his 

constitutional rights, Grove cites no case law or provides any further 

argument in support of his claim. Therefore, it is waived. See ReyesRodriguez, supra. 

Furthermore, it is well-settled that the government may prohibit 

certain individuals, such as convicted felons and the mentally ill, from 

possessing firearms, or preclude the carrying of firearms in specified places, 

such as schools or government buildings, without violating Second 

Amendment protections. See D.C. v. Heller, 554 U.S. 570, 626-627 

(2008); Lehman, supra, 839 A.2d at 273. Therefore, Grove’s 

constitutional challenges to his prosecution merit no relief.

In his next claim, Grove argues the trial court erred in concluding that 

Section 6105 was “essentially” a strict liability crime when the court 

determined the Commonwealth was not required to prove Grove knew his 
J-S16037-15

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possession of a firearm was prohibited.16 Grove’s Brief at 34. He asserts 

that strict liability offenses are disfavored, and generally, a statute “will not 

be considered to impose absolute liability absent some indication of a 

legislative directive to dispense with mens rea.” Id. at 35. To that end, 

Grove contends the more serious the penalty for the crime, the more likely 

the legislature intended to impose some culpability standard. Indeed, Grove 

states that when, as here, a statute is silent as to mens rea, the default 

culpability requirements set forth in 18 Pa.C.S. § 302(c) should apply: 

(c) Culpability required unless otherwise provided.--When 

the culpability sufficient to establish a material element of an 

offense is not prescribed by law, such element is established if a 

person acts intentionally, knowingly or recklessly with respect 

thereto.

18 Pa.C.S. § 302(c). 

Citing a number of cases in which courts of this Commonwealth have 

imputed Section 302(c) culpability standards, Grove argues the trial court 

erred in the present case when it concluded the Commonwealth was not 

required to prove that Grove possessed a firearm with some knowledge that 

he was prohibited from doing so. Further, absent proof of this knowledge, 

he asserts his prosecution violated his constitutional right to due process.

____________________________________________

16 “Whether a given statute is to be construed as requiring criminal intent is

to be determined by the court, by considering the subject matter of the 

prohibition as well as the language of the statute, and thus ascertaining the 

intention of the legislature.” Commonwealth v. Mayfield, 832 A.2d 418, 

427 (Pa. 2003) (citation omtted).
J-S16037-15

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In its opinion, however, the trial court clarified that it did not find 

Section 6105 was a strict liability statute. Rather, it “decline[d] to impose a 

notification requirement on the Commonwealth where the legislature ha[d] 

not included one.” Trial Court Opinion, 9/26/2014, at 4. As the court 

succinctly stated, “Notice to a defendant charged under Section 6105 is not 

an element the Commonwealth must prove.” Id. We agree.

Grove correctly asserts that Section 6105 does not contain a specific 

mens rea requirement, and there is no indication the legislature intended to 

impose strict liability for the crime. Accordingly, applying Section 302(c) to 

the terms of the statute, we find that, in order to secure a conviction under 

Section 6105, the Commonwealth must prove (1) the defendant had been 

previously convicted of a disabling offense enumerated in Subsection § 

6105(b), and (2) the defendant “intentionally, knowingly, or recklessly” 

possessed or used a firearm. See 18 Pa.C.S. § 6105(a)(1), (b). See 

Commonwealth v. Moore, 49 A.3d 896, 903 (Pa. Super. 2012) (holding 

for purposes of a conviction under Section 6105 “mere possession, along 

with the prior conviction, does establish the element of the crime” and 

Commonwealth need not prove the defendant “possessed the gun 

unlawfully.”) (emphasis supplied), vacated on other grounds, 102 A.3d 

1240 (Pa. 2014). 

Although Grove cites a number of cases in which both this Court and 

the Pennsylvania Supreme Court have imputed a mens rea to a statute that 

did not specifically include one, in each of those cases, the appellate court 
J-S16037-15

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found the “catch-all” mens rea in Section 302 was applicable to an element 

of the crime. See Commonwealth v. Gallagher, 924 A.2d 636 (Pa. 

2007) (holding Commonwealth must prove defendant acted intentionally, 

knowingly, or recklessly with respect to the victim’s age to secure a 

conviction for luring a “child” into a car pursuant to 18 Pa.C.S. § 2910); 

Mayfield, supra, 832 A.2d at 427 (imputing Section 302 culpability to the 

crime of institutional sexual assault; “to be convicted under [18 Pa. C.S.] § 

3124.2, a corrections officer would have to be at least reckless as to the 

status of their sexual partner as an ‘inmate, detainee, patient or 

resident.’”) (emphasis supplied); Commonwealth v. Pond, 846 A.2d 699, 

706 (Pa. Super. 2004) (imputing Section 302 culpability to sexual offender 

registration requirements; “the Commonwealth must establish that the 

accused’s failure to properly verify his address was intentional, knowing 

or reckless[.]”) (emphasis supplied); Commonwealth v. Woosnam, 819 

A.2d 1198, 1206 (Pa. Super. 2003) (holding trial court erred in failing to 

instruct the jury that they must find defendant, charged with leaving the 

scene of an accident involving death or personal injury, was at least 

negligent “with respect to her knowledge that she was involved in an 

accident involving death or injury.”) (emphasis supplied). See also

Staples v. U.S., 511 U.S. 600, 619 (1994) (holding that “to obtain a 

conviction [under the National Firearms Act for unlawful possession of an 

unregistered machine gun], the Government should have been required to 
J-S16037-15

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prove that petitioner knew of the features of his AR–15 that brought it 

within the scope of the Act.”) (emphasis supplied).

Conversely, here, Grove seeks to impute a mens rea requirement to 

his knowledge, or lack thereof, of the crime itself. Indeed, he contends 

the Commonwealth should have been required to prove that he knew his 

conviction of felony criminal trespass precluded him from owning or 

possessing a firearm, or, in other words, he knew he was violating a law. 

The decisions cited above, however, do not support this proposition. Rather, 

the cases upon which Grove relies impute a mens rea requirement to an 

element of the crime, not to the defendant’s knowledge that the crime 

existed.17 

____________________________________________

17 “It is well established that a bona fide, reasonable mistake of fact may, 

under certain circumstances, negate the element of criminal intent.” 

Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995). 

Section 304 of the Crimes Code provides:

Ignorance or mistake as to a matter of fact, for which there is 

reasonable explanation or excuse, is a defense if:

(1) the ignorance or mistake negatives the intent, 

knowledge, belief, recklessness, or negligence required to 

establish a material element of the offense; or

(2) the law provides that the state of mind established by 

such ignorance or mistake constitutes a defense.

18 Pa.C.S. § 304 (emphasis supplied). Again, here, Grove seeks to present 

a defense that he was mistaken as to the law.
J-S16037-15

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For example, in Gallagher, supra, the Supreme Court held that, to 

secure a conviction for luring a child into a car,18 the Commonwealth must 

prove Gallagher knew or was reckless regarding the age of the “child” he 

lured into a car. The Court did not require the Commonwealth to prove 

Gallagher knew it was a crime to lure a child into a car. Indeed, it is 

axiomatic that ignorance of the law is no defense. 

The familiar maxim “ignorance of the law is no excuse” typically 

holds true. Instead, our cases have explained that a defendant 

generally must “know the facts that make his conduct fit the 

definition of the offense,” Staples v. United States, 511 U.S. 

600, 608, n. 3, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), even if 

he does not know that those facts give rise to a crime.

Elonis v. United States, 135 S. Ct. 2001, 2009 (U.S. 2015) (emphasis 

supplied).

Herein lies the inherent problem with Grove’s argument. Grove seeks 

to ignore this well-established legal maxim, so that he can demonstrate he 

did not know he was statutorily prohibited from owning a firearm. While we 

recognize the allure of this argument, particularly since it was Grove’s only 

reasonable defense to the crime, unfortunately his line of reasoning does not 

conform with the law. The Court of Appeals has explained:

. . . [I]f such ignorance [of the law] were available as a defense 

in every criminal case, this would be a constant source of 

confusion to juries, and it would tend to encourage ignorance at 

a point where it is peculiarly important to the state that 

____________________________________________

18 See 18 Pa.C.S. § 2910.
J-S16037-15

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knowledge should be as widespread as is reasonably possible. 

In the language of one of the giants of the profession, this is a 

point at which justice to the individual is rightly outweighed by 

the larger interests on the other side of the scales.

United States v. Weiler, 458 F.2d 474, 479-480 (3d Cir. 1972) (footnote 

omitted), citing Holmes, The Common Law (1881) 48. See Young, supra, 

766 F.3d at 629-630 (rejecting argument that GCA is a strict liability statute 

because it does not require defendant know his possession of a firearm is 

illegal; “unless the statute is so vague, technical, or obscure that it threatens 

to ensnare individuals engaged in apparently innocent conduct, we apply the 

centuries-old maxim that ignorance of the law is no excuse and presume 

notice despite a defendant’s ignorance-in-fact.”) (internal punctuation and 

citation omitted).

Grove further argues, however, that in certain unique circumstances, 

the due process clause of the federal and state constitutions may “provide 

an exception to the maxim that a mistake of law is no defense and may 

ultimately foreclose a criminal prosecution prior to trial.” Grove’s Brief at 

43. In support of this claim, he cites our supreme court’s decision in 

Kratsas, supra. 

In Kratsas, the defendants were proprietors of a business that leased 

game and vending machines, including video poker and slot machines. After 

an investigation by the Pennsylvania Bureau of Liquor Control Enforcement 

revealed that some of the devices they leased were prohibited “gambling 

devices,” the defendants were charged with various criminal offenses, 

including corrupt organizations. Kratsas, supra, 764 A.2d at 23. Prior to 
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trial, the defendants sought dismissal of the charges as violative of their due 

process rights because, they alleged, gambling is de facto legal in 

Pennsylvania, and local officials and law enforcement routinely issue device 

licenses with the knowledge that the devices are used for gambling 

purposes. The trial court accepted the defendants’ claims, and dismissed 

the charges due to the defendants’ “reliance on misrepresentations of law by 

government officials.” Id. at 24. The court found that to allow the 

prosecutions to go forward in light of the actions of the relevant 

governmental officials would be violative of the defendants’ due process 

rights. Id. at 25. This Court subsequently affirmed the trial court’s 

decision. 

On appeal, our supreme court recognized that the so-called “reliance 

doctrine” provided “a narrow exception to the maxim that ignorance of the 

law is no excuse,” and might foreclose a criminal prosecution when (1) there 

is an “affirmative representation that certain conduct is legal[;]” (2) “the 

representation [is] made by an official or body charged by law with 

responsibility for defining permissible conduct respecting the offense at 

issue[;]” (3) the defendant actually relied on the statement of the official, 

and (4) the reliance was reasonable and in good faith. Id. at 29, 32-33. 

The Supreme Court held that in such “a narrow set of unique and compelling 
J-S16037-15

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circumstances,” due process concerns might preclude a criminal 

prosecution.19 Id. at 31.

Grove’s attempt to apply the due process concerns in Kratsas to the 

facts in the present case fails. Specifically, Grove does not argue the 

reliance doctrine applies herein. Indeed, he does not contend that a 

governmental official affirmatively told him that he was permitted to own 

and possess firearms.20 The due process concerns in Kratsas were narrowly 

tailored to the facts of that case, and the corresponding invocation of the 

reliance doctrine as a defense. Accordingly, Kratsas offers Grove no relief 

here, and his challenge regarding the purported lack of mens rea in the 

statute merits no relief.21

In his next two arguments, Grove asserts the trial court erred in 

granting the Commonwealth’s pretrial motion in limine and denying his 

request for certain jury questions, which effectively precluded him from 

____________________________________________

19 The Kratsas Court ultimately held, however, the defendants in that case 

failed to establish a due process claim based upon the reliance doctrine. 

Kratsas, supra, 764 A.2d at 39.

20 We note that there is nothing in the record to suggest that Grove applied 

for a license to carry a firearm after 1995, and was granted a license in 

contravention of the statute. Rather, Grove claims that governmental 

officials never told him he was prohibited from possessing a firearm.

21 We also reject Grove’s assertion that the due process clause in the 

Pennsylvania Constitution offers more protection than the due process 

clause in the United States Constitution. See Grove’s Brief at 44. Grove 

neglects to include a detailed Edmunds analysis, and, accordingly, his claim 

fails. See Edmunds, supra, 586 A.2d at 895. 
J-S16037-15

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presenting a defense that he was unaware he was violating Section 6105. 

Grove includes very little argument in his brief on these claims, but rather, 

continues to insist that he was unaware the law had changed in 1995, and, 

had he known he was prohibited from owning or possessing firearms, he 

would have applied for an exemption.22 See 18 Pa.C.S. § 6105(d)(iii) 

(permitting prior felon to apply to court of common pleas for exemption 

when, inter alia, the prior conviction was more than 10 years old).

Both the Commonwealth’s motion in limine, and Grove’s requested 

jury instructions, relate to his claim that he was unaware he was prohibited 

from owning or possessing a firearm. As discussed in detail above, Grove’s 

ignorance of the law is not a defense to the charge of persons not to possess 

firearms. Accordingly, the trial court properly restricted him from presenting 

this defense to a jury.

 In his last issue on appeal, Grove contends the trial court abused its 

discretion in denying him bail following his conviction.

Pennsylvania Rule of Criminal Procedure 521 provides that a trial court 

may release a defendant on bail, after he has been found guilty of a crime, 

under the following circumstances: 

(A) Before Sentencing

* * * *

____________________________________________

22 Indeed, Grove’s “argument” of these claims spans only two pages, and 

includes the entire text of the trial court’s order granting the 

Commonwealth’s motion in limine. See Grove’s Brief at 48-50.
J-S16037-15

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(2) Other Cases

* * * *

(b) Except [when convicted of an offense punishable by 

death or life imprisonment cases,] when the aggregate of 

possible sentences to imprisonment on all outstanding 

verdicts against the defendant within the same judicial 

district can exceed 3 years, the defendant shall have the 

same right to bail as before verdict unless the judge makes 

a finding:

(i) that no one or more conditions of bail will 

reasonably ensure that the defendant will appear 

and comply with the conditions of the bail bond; or

(ii) that the defendant poses a danger to any 

other person or to the community or to himself 

or herself.

The judge may revoke or refuse to set bail based 

upon such a finding.

(B) After Sentencing

* * * *

(2) Except [when convicted of an offense punishable by death or 

life imprisonment cases,] when the sentence imposed includes 

imprisonment of 2 years or more, the defendant shall not have 

the same right to bail as before verdict, but bail may be 

allowed in the discretion of the judge.

Pa.R.Crim.P. 521(A)-(B) (some emphasis supplied). Furthermore, the Rule 

provides that when a trial court refuses or revokes bail after conviction, it 

must state “on the record the reasons for this decision.” Pa.R.Crim.P. 

521(C).

In the present case, Grove was released on $25,000 bail at the time of 

his preliminary arraignment. However, after the trial court found him guilty 
J-S16037-15

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of persons not to possess firearms, the Commonwealth asked the court to 

revoke Grove’s bail. The court considered argument by both the prosecutor 

and Grove’s counsel, and ultimately revoked Grove’s bail. The court 

explained it had “a couple of concerns,” particularly with respect to Grove’s 

criminal record, which included “a common thread” of alcohol-related 

incidents. N.T., 1/24/2014, at 78, 79. Specifically, the court stated, “it 

concerns me that perhaps there is a more severe [alcohol] problem here 

then [sic] what you would be readily admitting to me.” Id. at 79. More 

importantly, the court feared for Grove’s own personal safety, as well as for 

the safety of his neighbor, who testified against him. Id. at 81. 

As noted above, prior to sentencing, Grove filed both a petition for bail 

pending appeal and a motion for bail for emergency medical treatment. The 

court denied both motions at the sentencing hearing. Grove then petitioned 

this Court for review of the trial court’s order denying both motions. 

Thereafter, in a series of orders, this Court directed the trial court to provide 

reasons on the record for its denial of Grove’s petition for bail. The trial 

court conducted several hearings to comply with this Court’s directive, and 

ultimately, on March 21, 2014, this Court denied Grove’s petition for review. 

See Order, 3/21/2014. 

Here, Grove contends the trial court abused its discretion when it 

denied him bail after his conviction. First, he notes that when he was 

granted bail pre-trial, he “appeared to all required court proceedings 

including his non-jury trial” when he knew he almost certainly faced a 
J-S16037-15

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conviction and a ten-year prison term after the court granted the 

Commonwealth’s motion in limine. Grove’s Brief at 50. Moreover, Grove 

asserts the trial court’s reasons for denying him bail were based upon 

“unfounded and unsubstantiated” accusations made by the Commonwealth 

during his trial. Id. at 51. Grove also argues the court abused its discretion 

in denying him bail to obtain medical treatment for a hernia and stage 4 

prostate cancer when he maintained private health insurance that would 

have paid for his treatment and would have had the help of family members 

to assist him in securing treatment and recovery. Id. at 56. 

Our review of the record reveals no abuse of discretion on the part of 

the trial court. First, after Grove’s conviction, the Commonwealth asked the 

trial court to revoke his bail. Pursuant to Rule 521(A)(2)(b)(ii), the court 

determined that Grove posed a danger to himself and to the community, and 

granted the Commonwealth’s request. Based on Grove’s criminal record, 

which included three DUI convictions, the facts underlying his present 

conviction, and the trial court’s comments following Grove’s trial, we do not 

find the trial court abused its discretion when it revoked Grove’s bail before 

his sentencing hearing. See N.T., 1/24/2014, at 78-82.

Second, after Grove was sentenced to a term of five to 10 years’ 

imprisonment, he did not have the same right to bail as before the verdict. 

See Pa.R.Crim.P. 521(B)(2) Rather, pursuant to Rule 521, after a defendant 

is sentenced to a term of imprisonment of two or more years, “bail may be 

allowed in the discretion of the trial judge.” Id. Again, we find no abuse of 
J-S16037-15

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discretion on the part of the trial court. In addition to the concerns the court 

expressed at the time it entered the verdict, the Commonwealth presented 

the testimony of two of Grove’s neighbors, who both expressed their fear of 

Grove.23 One neighbor testified that Grove drove up and down their private 

road “like it was a main highway” and had “no respect or consideration for 

[anyone], shooting his gun all hours of the night and day[.]” N.T., 

2/20/2014, at 36-38. McCloskey also testified that Grove threatened to kill 

her and her son. Id. at 38. Although Grove presented dozens of letters in 

support of his character, the court acted within its discretion when it credited 

the testimony of the Commonwealth’s witnesses. Accordingly, we, again, 

find the trial court did not abuse its discretion in denying Grove’s petition for 

bail pending appeal after sentencing.

Lastly, with respect to the court’s denial of Grove’s motion for bail for 

emergency medical treatment, the trial court provided the following rationale 

in its opinion:

[O]n Februrary 13, 2014, [Grove] filed a Motion to Set Bail, this 

time seeking that he be released from Centre County 

Correctional Facility for emergency treatment of his hernia.1 ... 

On February 21, 2014, this Court denied the ... motion for bail. 

... The Motion for Bail was also initially denied because [Grove] 

did not present any information concerning when he would be 

scheduled for surgery, with what surgeon, or where. After his 

non-jury trial and after bail was revoked, he contended he had a 

____________________________________________

23 One of those neighbors was the Commonwealth’s trial witness, Sherry 

McCloskey.
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hernia which required “emergency” surgery. Yet, in the 

attachment to his motion, the Progress Note dated January 8, 

2014 indicated that [Grove] had known he should have surgery 

since the appointment in early January yet he did nothing to 

move forward the surgery. He apparently aggravated the hernia 

and waited three weeks while having increased pain before 

seeing the doctor. The Progress Note also indicated he had the 

hernia for “several years.” This Court did notify the Centre 

County Correctional Facility regarding the serious nature of the 

hernia and the need for surgery. However, this Court felt 

[Grove] posed a risk to the community including his neighbor, 

the Commonwealth’s witness. Because [Grove] did not treat his 

hernia as an emergency and provided no information regarding 

the specifics of the surgery he argued was emergency, this Court 

denied his motion initially.

__________

1

In his [concise statement], at paragraph 11, [Grove] 

complains that this Court denied his motion for emergency 

medical treatment for stage 4 prostate cancer. This Court 

never denied a motion for emergency bail for treatment of 

prostate cancer. It is this Court’s understanding that it 

was very sadly discovered during his pre-op testing for the 

hernia repair surgery that [Grove] suffers from prostate 

cancer.

__________

When arrangements were made and information provided 

from his surgeon, Dr. Duncan, [Grove] was permitted furlough 

on April 29, 2014 to have hernia repair surgery at Geisinger 

Gray’s Woods in State College, Pennsylvania.

Trial Court Opinion, 9/26/2014, at 8-9.

We again detect no abuse of discretion. The trial court was, 

justifiably, initially skeptical of Grove’s characterization of his medical issue 

as necessitating emergency surgery when it appeared Grove had suffered 

from the condition for years. However, once a treatment plan was in place, 

the court granted Grove furlough to have the surgery. 
J-S16037-15

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Further, with respect to Grove’s cancer diagnosis, the trial court 

explained that the cancer was discovered during Grove’s pre-operative 

testing for his hernia surgery. See id. Although some of Grove’s medical 

records included a notation that Grove was suffering from Stage 4 prostate 

cancer, during the June 16, 2014, bail hearing, a prison physician testified 

that Grove was scheduled to meet with an oncologist the next day. See

N.T., 6/16/2014, at 4. Accordingly, any release for treatment before that 

consultation would have been premature. Therefore, we find the trial court 

properly denied Grove’s motion for bail for emergency medical treatment.

Because we have concluded that none of the claims raised on appeal 

warrant relief, we affirm Grove’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015