J-A15019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

BARRY E. GROVE

                                                    No. 1934 MDA 2016


            Appeal from the PCRA Order dated November 22, 2016
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000873-2013

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

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

        The Commonwealth appeals from the November 22, 2016 order issued

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

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

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

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

appeal is moot.

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

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

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

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

checked Grove’s criminal history and discovered that he had been convicted
____________________________________________
1
    42 Pa.C.S. §§ 9541-9546.
J-A15019-17


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

Firearms Act that was in effect in 2013, 18 Pa. C.S. § 6105, Grove’s 1978

conviction made it unlawful for him to own a gun. Therefore, in connection

with the April 23, 2013 incident, Grove was charged with illegal possession

of a firearm, in addition to the charge of cruelty to animals for the shooting

of Anne.2 The trial court severed the two charges.

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

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

               On December 9, 2013, Grove filed a motion in limine
        requesting the trial court preclude the Commonwealth from
        providing any details regarding the animal cruelty charge at his
        jury trial. Thereafter, on January 8, 2014, and January 15,
        2014, Grove filed an original and amended motion to dismiss the
        charge of persons not to possess firearms based upon his 1978
        guilty plea to criminal trespass. He argued, inter alia, that: (1)
        at the time of his 1978 conviction, he was not prohibited from
        possessing a firearm; (2) he received no notice when the law
        was amended in 1995; and (3) the amendment should not apply
        to him retroactively. The Commonwealth filed its own motion in
        limine on January 20, 2014, seeking to preclude Grove from,
        inter alia, presenting a defense as to his ignorance of the law.
        On January 23, 2014, one day before Grove’s scheduled jury
        trial, the trial court [Judge Bradley Lunsford] entered an order
        denying Grove’s motions to dismiss, and granting the
        Commonwealth’s motion in limine.

              In light of the trial court’s ruling, Grove waived his right to
        a jury trial and proceeded to a bench trial [before Judge
        Lunsford] on January 24, 2014. That same day, the trial court
        entered a verdict of guilty on the charge of persons not to
        possess firearms. After the verdict, and upon the motion of the
        Commonwealth, the trial court revoked Grove’s bail. Thereafter,

____________________________________________
2
    18 Pa.C.S. §§ 5511(a)(2.1)(A), 6105(a)(1).


                                           -2-
J-A15019-17


     Grove filed both a petition for bail pending appeal, and a motion
     for bail for emergency medical treatment.

            On February 20, 2014, the trial court imposed a sentence
     of five to 10 years’ imprisonment for Grove’s conviction under
     Section 6105. Additionally, at the close of the hearing, the court
     denied Grove’s outstanding motions for bail. Thereafter, Grove
     filed a timely post sentence motion, raising the same claims as
     in his pretrial motion to dismiss and his motion in limine, as well
     as challenging the court’s discretion in revoking his bail.

           While that motion was pending, Grove petitioned this Court
     for review of the trial court’s orders denying bail pending appeal
     and for emergency medical treatment.

           [On March 21, 2014, this Court denied review of the trial
     court’s decision to deny bail pending appeal. After several
     orders from this Court regarding the request for bail for
     emergency medical treatment, the trial court explained that
     Grove would be furloughed for surgery.]

           Thereafter, on June 12 and 16, 2014, the trial court
     conducted hearings on Grove’s post-sentence motions.        On
     June 16, 2014, the trial court entered an order denying Grove’s
     post-sentence motions.

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

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

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

     Meanwhile, on March 12, 2014, Grove pleaded guilty to one count of

cruelty to animals. That same day, Judge Lunsford sentenced him to nine

months to two years’ imprisonment on that charge, consecutive to his

sentence for the firearms charge.

     Grove filed a timely direct appeal from his judgment of sentence for

the firearms conviction. On July 28, 2015, this Court affirmed the judgment


                                    -3-
J-A15019-17


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

denied Grove’s petition for allowance of appeal.

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

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

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

incorrect prior record score under the Pennsylvania Sentencing Guidelines,

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

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

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

       (2) Failure to move for recusal;

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

       (4) Failure to raise Equal Protection claim;

       (5) Failure to raise Second Amendment claim;
____________________________________________
3
    In his direct appeal, Grove claimed: (1) his prosecution constituted an
improper retroactive application of the law; (2) his prosecution constituted
an ex post facto application of the law; (3) the punishment for his crime was
cruel and unusual punishment; (4) his prosecution for violation of Section
6105 contravened due process because Grove was not notified of the 1995
amendment to the statute which made him ineligible to possess a firearm;
(5) the retroactive application of Section 6105 stripped Grove of the right to
bear arms; (6) the trial court erred in concluding that Section 6105 was
“essentially” a strict liability crime because the court determined that the
Commonwealth was not required to prove Grove knew his possession of a
firearm was prohibited; (7) the trial court erred in granting the
Commonwealth’s pre-trial motion in limine; (8) the trial court erred in
denying Grove’s request for jury instructions, thus precluding him from
offering a defense that he was unaware he was violating Section 6105; and
(9) the trial court abused its discretion in denying Grove bail following his
conviction.


                                           -4-
J-A15019-17



       (6) Failure to challenge incorrect prior record score;

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

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

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

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

new sentencing proceeding. Id. at 6.

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

              Until exposed through Right to Know Law requests during
       the fall of 2014, Centre County District Attorney Stacy Parks-
       Miller was in the practice of communicating ex parte with former
       Centre County Judge Bradley Lunsford for the purpose of
       influencing his rulings on various matters at bar. At times,
       Parks-Miller would “text” Judge Lunsford for this purpose. In
       [Grove’s] case, Parks-Miller allied herself with a social-media-
       based activist group called “Justice for Anne,” “Anne” being the
       dog [Grove] shot for killing 150 of his chickens and between five
       and a dozen domesticated rabbits. These activists declared
       [Grove] to be “sub human,” characterized his counsel’s efforts as
       “scum defending scum,” and called for [Grove] to be “punished
       to the highest extent the law will allow.” In their Facebook
       posts, the activists recounted emailing Judge Lunsford about
       such matters as “why [Grove] needed the maximum penalty for
____________________________________________
4
  Grove filed an amended PCRA petition on December 27, 2016, which added
three claims: ineffective assistance of appellate counsel for failing to
adequately develop his Second Amendment claim; ineffective assistance of
trial counsel for failing to present the affirmative defense defined by 18
Pa.C.S. § 6105(a)(2)(i); and ineffective assistance of trial counsel for failing
to move to quash the firearms charge on the basis that application of
Section 6105 to Grove was an unlawful bill of attainder.
5
   Grove sought an expedited hearing because of his failing health (he has
cancer) and “the manifest injustices visited upon [him] during this criminal
action.” PCRA Pet. at 6.


                                           -5-
J-A15019-17


       what he did to Anne.” The Facebook page recounts that activists
       received “a very understanding” response from Judge Lunsford.

              The communications between the “Justice for Anne”
       activists and Judge Lunsford, standing alone, violated [Grove’s]
       constitutional right to an impartial tribunal.    An evidentiary
       hearing is required to determine whether Parks-Miller followed
       her customary practice of attempting to influence Judge Lunsford
       ex parte in this case.

                                       *       *   *

            Trial counsel was aware that Judge Lunsford had been
       communicating with the “Justice for Anne” activists. His failure
       to move for recusal constituted ineffective assistance of counsel.

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

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

communications between Judge Lunsford and Parks Miller and/or other

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

media communications between Parks Miller and members of the public

regarding Grove.

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

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

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

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

filed a brief in support of his motion for discovery, averring that exceptional
____________________________________________
6
  Rule 902 states, in pertinent part: “Except as provided in paragraph (E)(2)
[relating to a defendant’s first counseled petition in a death penalty case],
no discovery shall be permitted at any stage of the proceedings, except upon
leave of court after a showing of exceptional circumstances.” Pa.R.Crim.P.
902(E)(1).


                                           -6-
J-A15019-17


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

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

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

Brooks regarding issues that arose during that trial — conduct suggesting

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

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

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

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

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

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

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

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

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

unknown. In particular, Grove sought:

      (1) discovery of all communications between members of the
      Centre County District Attorney’s Office and Judge Lunsford
      during the entire temporal span of [Grove’s] case; and (2)
      discovery of all communications between members of the Centre
      County District Attorney’s Office and the “Justice for Anne” social
      media activist group during the entire temporal span of [Grove’s]
      case.

Grove’s Brief in Supp. of Mot. for Disc. at 4.




                                      -7-
J-A15019-17


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

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

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

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

records of telephone calls and text messages between Judge Lunsford and

either District Attorney Parks Miller or Assistant District Attorney Nathan

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

hearing records relating to such communications between May 2014 and

December 2014.8 She did not bring records regarding communications prior

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

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

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

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

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

2012 trial of Randall Brooks, Judge Lunsford told her that Parks Miller had
____________________________________________
7
    Judge Lunsford had retired in January of 2016.
8
   Grove’s lawyer subpoenaed the records from Lutz. The records had been
compiled previously, in response to a request made in the fall of 2014 under
the Pennsylvania Right to Know Law, 65 P.S. §§ 67.101 to 67.3104, for
communications between Judge Lunsford and personnel of the District
Attorney’s office in connection with a different case (Commonwealth v.
McClure, Centre County No. CP-14-CR-1778-2012). In a later proceeding
involving similar requests for communications involving other Centre County
judges, the Commonwealth Court held that it was improper for the county to
produce such records without first obtaining approval from an appropriate
judicial open records officer. See Grine v. County of Centre, 138 A.3d 88
(Pa. Cmwlth.), appeal denied, 157 A.3d 483 (Pa. 2016).


                                           -8-
J-A15019-17


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

at 67-69.

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

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

request from the appropriate Centre County officials:

       1. . . . [A]ny records of text or phone messages for the time
       period beginning January 15, 2014 through March 16, 2014 and
       for the period beginning June 10, 2014 through June 18, 2014
       between former Judge Lunsford and any member of the District
       Attorney’s Office.

       2. . . . [T]he production of any electronic device issued to Judge
       Lunsford, District Attorney Parks Miller, Assistant District
       Attorney Boob, and Assistant District Attorney [Lindsay] Foster[9]
       for the above periods.

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

       3. Defense counsel may request discovery from the Bellefonte
       Police Department concerning any downloading of phone or text
       messages of District Attorney Parks Miller related to this case
       only.[10]

       4. Defense Counsel may request of the Office of Disciplinary
       Counsel and the Judicial Conduct Board, any material in the

____________________________________________
9
   The phone records obtained through the Right to Know request showed
that ADA Foster had exchanged numerous text messages with Judge
Lunsford during the criminal trial in Commonwealth v. McClure in
September 2014. The record in this appeal contains no evidence that Foster
was involved in Grove’s case.
10
    In January 2015, Parks Miller’s phone was seized pursuant to a search
warrant after she was accused of forgery in another matter. The statewide
investigating grand jury judge later ruled that the warrant used to seize
Parks Miller’s phone was invalid. Parks Miller averred that the phone that
was seized was not the one she used during Grove’s trial.


                                           -9-
J-A15019-17


       possession of either agency which involves a downloading of any
       telephone or text messages regarding this case.

             Any information received from the Office of Disciplinary
       Counsel or the Judicial Conduct Board shall be sent directly to
       the undersigned Judge for in-camera review prior to release to
       any of the parties.

Id.

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

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

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

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

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

with the order attached, on December 1, 2016.11

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

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

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

Commonwealth represented that the hearing included presentation of

evidence regarding telephone conversations between Judge Lunsford and the

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

person who prepared Grove’s presentence investigation report testified
____________________________________________
11
   On December 21, 2016, this Court issued an order directing the
Commonwealth “to show cause within 10 days from the date of this Order,
why the appeal should not be quashed as taken from an unappealable order
and how this appeal satisfies the requirements of Pa.R.A.P. 313.” On
January 3, 2017, the Commonwealth filed a timely response, and on January
5, this Court discharged the rule to show cause and referred the issue of
appealability to the merits panel.


                                            - 10 -
J-A15019-17


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

adjourned and scheduled to continue on January 25, 2017.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

jurisdiction.” That same day, this Court issued the following order:
____________________________________________
12
   Appellate Rule 1701(a) provides: “Except as otherwise prescribed by
these rules, after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may no longer proceed
further in the matter.”
13
  The Commonwealth did not argue that the other testimony at the January
11 hearing was improper.


                                          - 11 -
J-A15019-17


             Upon consideration of the Commonwealth’s “emergency
       motion to enforce appellate stay under Pa.R.A.P. 1701,” filed in
       this Court on January 24, 2017 at 2:13 P.M., wherein the
       Commonwealth requested, in part, that this Court stay a trial
       court proceeding scheduled for January 25, 2017 at 10:00 A.M.,
       the proceedings below in the trial court are hereby STAYED
       pending disposition of the above-captioned appeal.

Order, 1/24/17.

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

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

held that trial counsel was ineffective for failing to correct an error in Grove’s

prior record score at the time of sentencing, and it vacated Grove’s

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

stated:

             Defendant suggests counsel was ineffective in failing to
       correct an error in his prior record score at the time of
       sentencing. Trial counsel acknowledged that he believed the
       correct prior record score was a four (4), but failed to raise the
       issue. The Commonwealth contends the sentence imposed was
       not an illegal sentence, suggesting that even if the prior record
       score was a three (3), the imposed sentence of sixty (60) to one
       hundred twenty (120) months was within the fifty-four (54) to
       seventy-two (72) month standard minimum range. The
       Commonwealth suggests such questions regarding the discretion
____________________________________________
14
   It appears that the scheduled January 25, 2016 PCRA evidentiary hearing
did not take place. At the time of the scheduled hearing, the PCRA court
announced that it had filed its opinion. The PCRA court stated that its
opinion was prepared on and dated January 23, 2017, prior to this Court’s
January 24 stay order. The PCRA court stated, “I have already decided this
case[.] I don’t think the Superior Court can tell me not to file an opinion and
a decision which I have already reached.” N.T., 1/25/17, at 3. The
Commonwealth objected to the filing of the opinion and order, arguing that
the PCRA court lost jurisdiction when the Commonwealth filed its notice of
appeal on November 23, 2016. Id.


                                          - 12 -
J-A15019-17


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

           We find no reasonable basis for trial counsel's failure to
     advise the Sentencing Court of the correct prior record score,
     which, on the basis of testimony presented by the Centre County
     Probation Department arguably was a four (4). Because the
     actual sentence was at the lowest level of the standard range,
     we are unable to say that the Sentencing Court would not have
     imposed a fifty-four (54) month minimum sentence had the prior
     record score been either a three (3) or a four (4). Under such
     circumstances, we find trial counsel to have been ineffective,
     vacate the sentences imposed on both counts, and direct that
     the matter be listed for resentencing.

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

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

house arrest.

     With regard to Grove’s claims that he was denied the right to an

impartial tribunal and that trial counsel was ineffective in failing to

successfully move for recusal of Judge Lunsford — the claims as to which he

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

     Unlike other cases in which this issue has been raised recently,
     the thrust of [Grove]’s argument involves only the effect of the
     alleged ex parte contacts on [Grove]’s sentences. With respect
     to the firearms charge, there were no factual issues in dispute
     and no evidentiary rulings beyond the constitutional issues
     presented to the trial [c]ourt. With respect to the Cruelty to
     Animals charge, [Grove] entered a guilty plea. Because . . . we
     are vacating [Grove]’s sentences, we find it unnecessary to
     further pursue the issue of alleged ex parte communications.

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

of Grove’s remaining claims.




                                   - 13 -
J-A15019-17


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

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

Commonwealth alleged that the PCRA court had exercised jurisdiction in

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

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

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

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

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

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

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

            The trial court’s January 25, 2017 order is temporarily
      STAYED. As Appellee has not had a full opportunity to respond
      to the Commonwealth’s motion, Appellee is directed to file with
      this Court a response to the Commonwealth’s emergency motion
      within seven (7) days from the date of this Order.

Order, 1/25/17.

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

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

other things, that the Commonwealth’s appeal of the discovery order was

moot in light of the PCRA court’s January 25, 2017 order granting partial

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

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

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

November 23, 2016.


                                    - 14 -
J-A15019-17


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

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

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

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

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

Commonwealth opposed Grove’s motion.

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

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

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

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

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

an expedited basis.16

____________________________________________
15
     Rule 1701(c) states:

        Where only a particular item, claim or assessment adjudged in
        the matter is involved in an appeal, or in a petition for review
        proceeding relating to a quasijudicial order, the appeal or
        petition for review proceeding shall operate to prevent the trial
        court or other government unit from proceeding further with
        only such item, claim or assessment, unless otherwise ordered
        by the trial court or other government unit or by the appellate
        court or a judge thereof as necessary to preserve the rights of
        the appellant.
16
   Upon ordering Grove’s resentencing, the PCRA court’s January 25, 2017
order provided, “This Order shall not constitute a final Order for purposes of
appeal pursuant to Rule 910 of the Rules of Criminal Procedure until
Defendant is resentenced,” and it advised Grove of his right to appeal “from
the final Sentencing Order to be entered in the future.” PCRA Ct. Order,
1/25/17, ¶¶ 3-4. Nevertheless, on February 24, 2017, Grove appealed from
(Footnote Continued Next Page)

                                          - 15 -
J-A15019-17


      In this appeal, the Commonwealth raises the following issues:

      I. Whether this Court has jurisdiction, under Pa.R.A.P. 313, over
      the Commonwealth’s appeal from the PCRA court’s grant of
      discovery with respect to:

          A. Phone records of communications between Judge Lunsford
          and any member of the Centre County DA’s office between
          January 15, 2014 and March 16, 2014, and June 10, 2014
          through June 16, 2014; and electronic devices belonging to
          Judge Lunsford, DA Stacy Parks Miller, ADA Boob, and ADA
          Foster;

          B. The fruits of an illegal forensic analysis of a cell phone once
          belonging to DA Parks Miller, a cell phone not used by Parks
          Miller during [Grove]’s trial;

          C. Material allegedly possessed by the Judicial Conduct Board
          and the Disciplinary Board.

      II. Whether the PCRA court committed an abuse of discretion by
      granting [Grove]’s motion for discovery because [Grove] did not
      meet the Pa.R.Crim.P. 902(E)(1) exceptional circumstances
      standard permitting discovery in a non-capital PCRA proceeding.

Commonwealth’s Brief at 6.




                       _______________________
(Footnote Continued)
the PCRA court’s January 25, 2017 order. See Commonwealth v. Grove,
No. 358 MDA 2017. In that appeal, Grove argues, among other things, that
the trial court erred in not conducting an evidentiary hearing on the issue of
ex parte communications. He contends that had he been allowed to prove
his claim of ex parte communications during the pretrial or trial proceedings
in his case, the PCRA court would have had to vacate his convictions, not
just his sentences. Grove stated that he filed the new appeal “[b]ecause
this Court has not, to date, clarified the significance of [this Court’s stay
order] on the January 23/25, 2017 order of the PCRA court.” Grove’s Brief,
No. 358 MDA 2017, at 9-10. During oral argument in this case, Grove’s
counsel repeated that explanation and argued that, despite his appeal from
the January 25 order, the partial relief granted by that order renders his
appeal in this case moot.


                                           - 16 -
J-A15019-17


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

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

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

has explained:

     An accurate description of those circumstances which raise the
     issue of mootness is provided by Professor Gunther, who writes:

           The cases presenting mootness problems involve litigants
           who clearly had standing to sue at the outset of the
           litigation. The problems arise from events occurring after
           the lawsuit has gotten under way — changes in the facts
           or in the law — which allegedly deprive the litigant of the
           necessary stake in the outcome. The mootness doctrine
           requires that “an actual controversy must be extant at all
           stages of review, not merely at the time the complaint is
           filed.”   G. Gunther, Constitutional Law 1578 (9th ed.
           1975).

     It is well established in this jurisdiction that this Court will not
     decide moot questions. As explained above, a legal question can
     become moot on appeal as a result of an intervening change in
     the facts of the case. For example, [a quo warranto action may
     be mooted by the expiration of the defendant’s term of office; a
     contract action may be mooted by entry into a new superseding
     contract, and an action for possession of property may be
     mooted by a conveyance of the property].

     Similarly, an issue can become moot due to an intervening
     change in the applicable law.

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

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

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

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

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


                                    - 17 -
J-A15019-17


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

1190, 1193 (Pa. Super. 1982).

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

resentenced on grounds unrelated to the discovery issues that the

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

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

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

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

ultimate outcome regarding the Commonwealth’s discovery issues.

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

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

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

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

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

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

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

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

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

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

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

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

based its conclusion on the absence of disputed factual issues during the


                                    - 18 -
J-A15019-17


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

prejudice resulting from ex parte communications between Judge Lunsford

and District Attorney personnel during those proceedings slim.       See PCRA

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

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

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

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

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

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

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

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

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

issues presented by the Commonwealth are indeed moot.              During oral

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


____________________________________________
17
   As noted, Grove pleaded guilty to the charge of cruelty to animals. He
contested the firearms charge by raising several legal defenses, but did not
contest the factual evidence. This Court rejected Grove’s legal challenges to
the firearms charge in Grove’s direct appeal. See Grove, 1135 MDA 2014,
at 2, 7-32.
18
  As we have noted (see fn. 16, supra), Grove already has filed such an
appeal, which is separately docketed in this Court at No. 358 MDA 2017.
That appeal has not been consolidated with this one, and we therefore do
not address it here, except to note that its filing after this Court had entered
an order staying proceedings in the PCRA court and before the PCRA court
entered a new sentencing order raises grave questions about whether that
appeal is valid.


                                          - 19 -
J-A15019-17


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

appeal moot.

     After considering the various positions of the parties, we conclude that

the PCRA court’s January 25, 2017 order has made such a change to this

case that, in terms of a mootness analysis under Pennsylvania law, there no

longer is such an extant case or controversy as would justify our

continuation   with   this   appeal.     The    Commonwealth’s   appeal   raises

substantial questions regarding the availability and permissible scope of

discovery in PCRA cases — questions that are especially delicate because

they involve discovery regarding communications with a judge. The appeal

also raises important threshold questions regarding our jurisdiction to hear

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

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

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

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

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

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

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

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

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

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

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


                                       - 20 -
J-A15019-17


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

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

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

therefore agree with the views expressed by both parties during oral

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

moot.

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

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

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

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

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

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

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

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

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

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

questions attending the January 25, 2017 order raise serious doubts

regarding the order’s validity.

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

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

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

Accordingly, because there is a substantial question whether the PCRA


                                        - 21 -
J-A15019-17


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

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

of entry of this memorandum, to either (1) re-enter its January 25, 2017

order, or (2) inform this Court of any reasons why it concludes that it should

not do so.     The PCRA court shall supplement the certified record as

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

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

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

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

      Case remanded with instructions. Panel jurisdiction retained.




                                    - 22 -
