Com. v. Grove, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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
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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
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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
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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
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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
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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
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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- 16 -
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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
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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
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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.
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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
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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.
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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 Reyes-
Rodriguez, 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
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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).
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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
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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
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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.
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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
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