J-S58013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

DAVID LEE GROVER, JR.,

                            Appellant                           No. 622 MDA 2015


                  Appeal from the PCRA Order January 21, 2015
              in the Court of Common Pleas of Huntingdon County
               Criminal Division at No.: CP-31-CR-0000054-2010

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED NOVEMBER 24, 2015

        Appellant, David Lee Grover, Jr., appeals nunc pro tunc from the order

denying his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        Because    Appellant’s     claims      allege   trial   and   appellate   counsel

ineffectiveness, we will provide a brief recitation of the pertinent facts, which

we take from this Court’s April 9, 2012 memorandum opinion.

              [B]etween August[] 2009[] and December[] 2009,
        Appellant and B.P. were engaged in a sexual relationship.
        Appellant was [39 years old and] [B.P.] was [15 years old when
        the relationship began].

                                        *      *   *

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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              [B.P.] testified that sexual things started to happen
       between her and Appellant in August[] 2009. [B.P.] was clear
       she wanted them to happen as she loved Appellant. . . . [B.P.]
       testified that she and Appellant had sexual intercourse five (5)
       times before her sixteenth (16th) birthday[, but] was very
       unclear with respect to dates, days, and times. . . .

             Trooper Charles Aungst, a sixteen (16) year state police
       veteran, testified he opened an investigation in early January[]
       2010. After interviewing [B.P.] and her mother on January 9,
       2010, he unsuccessfully called Appellant. Later that same day,
       [Appellant] returned the call and arrangements were made to
       meet the following day at the state police barracks.

              The next day Appellant appeared at the barracks.
       [Appellant] was told what the allegations were that prompted
       the interview. He was also told he was free to leave. Trooper
       Aungst testified that he read to [Appellant] a form headed
       “Pennsylvania Noncustodial Written Statement”, and that
       [Appellant] placed appropriate checkmarks on the form and
       initialed his answers.     Thereafter, [Trooper Aungst] asked
       Appellant a series of forty-eight (48) questions. He kept notes
       as to each question as well as [Appellant’s] answers. After the
       questioning was completed, Trooper Aungst allowed Appellant to
       leave.

(Commonwealth           v.    Grover,      No.   998    MDA   2011,   unpublished

memorandum at *1-*3 (Pa. Super. filed Apr. 9, 2012)) (citing Trial Court

Opinion, 7/18/11, at 2-5).

       On January 12, 2011, a jury convicted Appellant of involuntary deviate

sexual intercourse, statutory sexual assault, aggravated indecent assault,

corruption of minors, and indecent assault.1           On May 19, 2011, the court

sentenced Appellant to an aggregate term of incarceration of not less than
____________________________________________


1
  18 Pa.C.S.A. §§ 3123(a)(7), 3122.1, 3125(a)(8), 6301(a)(1), and
3126(a)(8), respectively.



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ten nor more than twenty years. Appellant filed a timely appeal, and this

Court affirmed his judgment of sentence on April 9, 2012. (See id. at *18).

Appellant did not file a petition for allowance of appeal with our Supreme

Court.

       On October 22, 2012, Appellant filed a pro se first PCRA petition.

Appointed PCRA counsel filed an amended petition on December 19, 2012.

The court held a hearing on October 3, 2014.            After the parties filed

proposed findings of fact, the PCRA court denied the petition on January 21,

2015. On March 2, 2015, Appellant filed a motion to file an appeal nunc pro

tunc, which the court granted. Appellant timely appealed.2

       Appellant purports to raise one vague issue for our review: “Whether

the PCRA court erred in dismissing the PCRA [p]etition filed by [Appellant]?”

(Appellant’s Brief, at 7). However, in fact, he raises five separate claims of

ineffectiveness of counsel. Specifically, he maintains that counsel failed to:

(1) call proposed witnesses; (2) introduce certain evidence; (3) advise the

trial court of juror misconduct; (4) object to the trial court’s answer to a jury

question; and (5) file for an allowance of appeal with the Pennsylvania

Supreme Court. (See id. at 12-17). We will treat each of these allegations

as a separate issue.

____________________________________________


2
  Appellant filed a timely Rule 1925(b) statement on April 30, 2015 pursuant
to the PCRA court’s order. See Pa.R.A.P. 1925(b). The PCRA court filed a
Rule 1925(a) opinion on May 19, 2015. See Pa.R.A.P. 1925(a).



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      Preliminarily, we observe that, other than initial citations to boilerplate

law, (see id. at 11-12), in the argument section, Appellant provides no

pertinent legal citation in support of each of his individual arguments,

particularly as they apply to the Pierce prongs.      (See id. at 15-18); see

also Pa.R.A.P. 2119(a), (b); Commonwealth v. Pierce, 527 A.2d 973, 976

(Pa. 1987). Instead, the argument section of his brief contains recitations of

the facts in the light most favorable to him, and conclusory statements

without any well-developed discussion, in violation of Pennsylvania Rule of

Appellate Procedure 2119(a) and (b).            See Pa.R.A.P. 2119(a), (b).

Therefore, Appellant’s claims are waived.           See Commonwealth v.

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007), appeal denied, 982 A.2d

509 (Pa. 2007) (“We shall not develop an argument for [the appellant], nor

shall we scour the record to find evidence to support an argument;

consequently, we deem this issue waived.”).

      Moreover, Appellant’s issues would not merit relief. Our standard of

review of appeals from PCRA court decisions is well-settled:

            This Court analyzes PCRA appeals “in the light most
      favorable to the prevailing party at the PCRA level.”
      Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super.
      2012[, appeal denied, 64 A.3d 631 (Pa. 2013)]. Our “review is
      limited to the findings of the PCRA court and the evidence of
      record” and we do not “disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.” Id.
      Similarly, “[w]e grant great deference to the factual findings of
      the PCRA court and will not disturb those findings unless they
      have no support in the record. However, we afford no such
      deference to its legal conclusions.”    Id. (citations omitted).


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      “[W]here the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary. . . .” Id.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014). Further,

“[t]he PCRA court’s credibility determinations, when supported by the

record, are binding on this Court.” Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011) (citation omitted).

      As stated previously, Appellant asserts five claims of counsel’s

ineffectiveness. (See Appellant’s Brief, at 12-17).

            [T]o succeed on an ineffectiveness claim, a petitioner must
      demonstrate that: the underlying claim is of arguable merit;
      counsel had no reasonable basis for the act or omission in
      question; and he suffered prejudice as a result, i.e., there is a
      reasonable probability that, but for counsel’s error, the outcome
      of the proceeding would have been different. A reasonable
      probability is a probability sufficient to undermine confidence in
      the outcome of the proceeding.

Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations

omitted); see also Pierce, supra at 976. “Counsel’s assistance is deemed

constitutionally effective once this Court determines that the defendant has

not established any one of the prongs of the ineffectiveness test.”

Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citation

and emphasis omitted).

      Here, Appellant’s first allegation of trial counsel ineffectiveness

maintains that counsel “fail[ed] to call the witnesses [Appellant] gave to him

in their pretrial meetings.” (Appellant’s Brief, at 12). Specifically, Appellant

maintains that trial counsel erred in failing to call B.P.’s grandmother, S.H.,


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her Juniata Valley band camp director, her friend, C.B., and C.B.’s mother,

D.B., as witnesses at trial. (See id. at 12-14). Appellant’s claim would not

merit relief.

             When raising a claim of ineffectiveness for the failure to
      call a potential witness, a petitioner [must establish] that: (1)
      the witness existed; (2) the witness was available to testify for
      the defense; (3) counsel knew of, or should have known of, the
      existence of the witness; (4) the witness was willing to testify for
      the defense; and (5) the absence of the testimony of the witness
      was so prejudicial as to have denied the defendant a fair trial.
      To demonstrate . . . prejudice, a petitioner must show how the
      uncalled witnesses’ testimony would have been beneficial under
      the circumstances of the case. Thus, counsel will not be found
      ineffective for failing to call a witness unless the petitioner can
      show that the witness’s testimony would have been helpful to
      the defense. A failure to call a witness is not per se ineffective
      assistance of counsel for such decision usually involves matters
      of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

and quotation marks omitted).

      We first review Appellant’s argument as to S.H. and the band camp

director. Appellant claims that B.P. was out of state with S.H., and at the

Juniata Valley band camp, during part of August 2009, and that the

grandmother and the band camp director would have testified to that fact.

(See Appellant’s Brief, at 13-14).

      However, Appellant does not argue that these individuals were

available and willing to testify for the defense, or that the absence of this

testimony “was so prejudicial as to have denied [him] a fair trial.” Sneed,

supra at 1109. In fact, the PCRA court observed that S.H. did not testify at


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the PCRA hearing and “even if [she] testified [at trial] as advertised, the

relevance of the testimony would have been minimal given that B.P. did not

testify as to the dates and times of her sexual encounters with [Appellant].”

(PCRA Court Opinion, 5/19/15, at 5). Further, trial counsel testified at the

PCRA hearing that Appellant never identified S.H. as a potential witness.

(See N.T. PCRA Hearing, 10/03/14, at 5).

      Additionally, counsel stated that he did not call the band camp director

as a witness because B.P. had not testified about specific dates of the sexual

activity, and therefore it would not have been worth it. (See id. at 6). In

addition, he testified that, although he did not call the camp director, he

cross-examined B.P. at trial about the band camp issue. (See id.; see also

N.T. Trial, 1/12/11, at 58-59).

      Therefore, based on the foregoing, Appellant’s claim of trial counsel

ineffectiveness for not calling S.H. and the band director as witnesses would

lack merit, even if not waived, where he failed to prove that the witnesses

were available and willing to testify, that counsel knew of their existence,

and that “the absence of the testimony . . . was so prejudicial as to have

denied [Appellant] a fair trial.”   Sneed, supra at 1109; see also Laird,

supra at 978; Rolan, supra at 406.

      We next address Appellant’s claim as it relates to C.B. and D.B. (See

Appellant’s Brief, at 13-14).




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      At the PCRA hearing, Appellant testified that he told counsel about

B.P.’s friend, C.B., and that she could testify that she spent several

overnights at his house, and he never made any sexual advances toward

her. (See N.T. PCRA Hearing, at 32). Appellant stated that he told counsel

that he wanted D.B. to testify because “she obviously . . . felt comfortable

enough for her daughter to spend time at [his] house. She had no worries

either of something like that happening.” (Id. at 32-33). However, counsel

testified that Appellant did not mention either C.B. or D.B. to him as

potential witnesses, and the individuals did not appear at the PCRA hearing.

(See id. at 3, 7).

      After our independent review of the record, we conclude that Appellant

failed to establish that counsel knew of, or should have known, about C.B.

and D.B., that they were available and willing to testify on his behalf, or that

“the absence of [their] testimony . . . was so prejudicial as to have denied

[him] a fair trial.” Sneed, supra at 1109.

      Therefore, in sum, Appellant failed to meet his burden of proving trial

counsel’s ineffectiveness for not calling S.H., the band camp director, C.B.

and D.B. as witnesses.    See Sneed, supra at 1108-09; see also Laird,

supra at 978; Rolan, supra at 406.         Accordingly, Appellant’s first issue

would not merit relief.

      In his second claim, Appellant maintains that trial counsel was

ineffective for failing to present evidence of B.P.’s alleged sexually


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transmitted disease (STD), which he and his wife do not have.            (See

Appellant’s Brief, at 14).         He argues that “[t]his evidence would have

established that [he] could not have performed the alleged acts in

question[]” and “was relevant . . . to attack the credibility of the alleged

victim.” (Id.) (citing Commonwealth v. Fink, 791 A.2d 1235, 1241 (Pa.

Super. 2002).3 Appellant’s claim would not merit relief.

       At the PCRA hearing, counsel testified that he had no recollection of a

conversation with Appellant about B.P.’s alleged STD.4        (See N.T. PCRA

Hearing, at 8). Therefore, because counsel had a reasonable basis for not

presenting the evidence where he was not aware of it, and Appellant fails to

prove that, but for the omission of this alleged evidence, the outcome of the

trial would have been different, see Laird, supra at 978, we conclude that

the record supports the PCRA court’s finding that Appellant failed to prove

____________________________________________


3
  Although we already observed that Appellant waived all of his issues, we
note that his paltry six sentence long “argument” does cite to Fink in
support of his allegation that “[t]he evidence was relevant . . . to attack the
credibility of [B.P.].” (Appellant’s Brief, at 14). However, he does not
provide any pertinent discussion or caselaw regarding Fink’s applicability to
this case, or about his specific allegation regarding the admissibility of
evidence of a victim’s alleged STD. (See id.); see also Pa.R.A.P. 2119(a),
(b).
4
  Counsel further maintained that, even if he knew about the evidence, and
it was true, it probably would have been inadmissible under the Rape Shield
Law, 18 Pa.C.S.A. § 3104. (See N.T. PCRA Hearing, at 8). However,
because of our disposition, we need not discuss the accuracy of this
statement.




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counsel’s ineffectiveness for not introducing evidence of B.P.’s alleged STD.

See Laird, supra at 978; Rolan, supra at 406. Appellant’s second issue

would lack merit.

      In his third claim, Appellant maintains that “[t]rial counsel was

ineffective for failing to advise the trial court that one of the jurors [had]

been overheard on the telephone saying his mind was made up that

[Appellant] was guilty and they would be home soon . . . .”          (Appellant’s

Brief, at 14).   Appellant’s issue, in addition to being waived for failing to

provide pertinent citation and discussion, would not merit relief.

      At the PCRA hearing, counsel unequivocally stated that neither

Appellant nor his wife alerted him to alleged juror misconduct.        (See N.T.

PCRA Hearing, at 9). Counsel expressly testified that, had he been told of

anything of that nature, he immediately would have informed the trial court.

(See id.).

      The PCRA court found counsel’s testimony credible in part based on its

own prior experience with him.       (See PCRA Ct. Op., at 8-9).      We cannot

overrule this credibility finding.   See Spotz, supra at 259.        Accordingly,

because he failed to plead and prove that counsel even knew about the

alleged juror misconduct, Appellant’s third issue, even if not waived, would

not merit relief. See Laird, supra at 978; Rolan, supra at 406.

      In his fourth claim, Appellant maintains that trial counsel was

ineffective for failing to object to the trial court’s response to a jury question


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during deliberations about the import of his signature on the non-custodial

rights waiver form. (See Appellant’s Brief, at 15-16). This allegation would

not merit relief.

      In Appellant’s direct appeal, this Court addressed the issue of whether

“the trial court erred when it refused to charge the jury that Appellant’s

signature on the noncustodial rights waiver form was not a verification of the

answers Appellant gave to Trooper Aungst on January 10, 2010.” (Grover,

supra at *15).      Although this Court found waiver for counsel’s failure to

object, it addressed the merits of the claim and it concluded that Appellant

was not entitled to relief. (See id. at *17-*18).

      Therefore, Appellant’s claim that trial counsel was ineffective for failing

to object to the trial court’s answer to the jury question would fail where the

underlying claim has been previously litigated, and found to lack merit. See

Laird, supra at 978; Rolan, supra at 406. Hence, Appellant’s fourth claim

would not merit relief.

      In his fifth issue, Appellant argues that counsel was ineffective for

failing to file a petition for allowance of appeal with the Pennsylvania

Supreme Court.      (See Appellant’s Brief, at 16).   This allegation would not

merit relief.

      It is well-settled that “the unjustified failure to file a requested direct

appeal is ineffective assistance of counsel per se and that an appellant need

not show that he likely would have succeeded on appeal in order to meet the


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prejudice prong of the test for ineffectiveness.” Commonwealth v. Bath,

907 A.2d 619, 622 (Pa. Super. 2006), appeal denied, 918 A.2d 741 (Pa.

2009) (citation omitted).

      However,

             . . . [b]efore a court will find ineffectiveness of counsel for
      failing to file a direct appeal, the defendant must prove that he
      requested an appeal and that counsel disregarded that request.
      Clearly, if a request to file a direct appeal is necessary to sustain
      an ineffectiveness claim based upon the failure to file a direct
      appeal, then such a request is also necessary where the alleged
      ineffectiveness is the failure to file a petition for allowance of
      appeal.

Id. (citations and quotation marks omitted).

      In this case, the PCRA court found that “it is far from clear that

[Appellant] established a basis for relief.”      (PCRA Ct. Op., at 13).       More

specifically,   the   court   stated   “[w]hat   [was   not]   established     by   a

preponderance of the evidence was that [Appellant’s] desire that a [petition

for allowance of appeal] be filed was communicated to [counsel].”              (Id.).

The record supports the trial court’s finding.

      At the PCRA hearing, counsel testified that he immediately notified

Appellant when this Court denied his direct appeal.             (See N.T. PCRA

Hearing, at 14).      Counsel told Appellant that he had the right to file a

petition for allowance of appeal with the Pennsylvania Supreme Court, either

with him or other retained counsel, but that he required a $2,000.00

retainer before he could move forward. (See id.). He spoke to Appellant’s

wife one time, and told her to contact him about the deposit and filing a

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petition if Appellant wanted to go ahead with an appeal. (See id.). When

asked what he would do if he “received notice from [Appellant] that he

wanted to petition for allowance of appeal but he did not have the

appropriate funds,” counsel responded that he would have been required to

file the petition. (Id. at 22). However, he did not do so because, not only

did he not receive the $2,000.00 payment, neither Appellant nor his wife

called his office and told him to file the petition. (See id. at 14-15).

      Based on the foregoing, we conclude that Appellant has failed to meet

his burden of proving, by a preponderance of the evidence, that his

underlying claim, that he told counsel to file a petition for allowance of

appeal and counsel failed to do so, has merit. See Bath, supra at 622; see

also Laird, supra at 978; Rolan, supra at 406.           Appellant’s fifth issue

would not merit relief.

      Therefore, based on our review of Appellant’s issues, we conclude that

the PCRA court did not err or abuse its discretion in denying his PCRA

petition, and that Appellant would not be entitled to appellate relief, even if

he had not waived his claims. See Rigg, supra at 1084.

      Order affirmed.

      President Judge Gantman joins the Memorandum.

      Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2015




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