Commonwealth v. Norris

• Decision Date: 13 July 2022
• Docket Number: 1178 WDA 2021,1179 WDA 2021,J-S14043-22
• Parties: COMMONWEALTH OF PENNSYLVANIA v. CALVIN NORRIS Appellant COMMONWEALTH OF PENNSYLVANIA v. CALVIN NORRIS Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA v. CALVIN NORRIS Appellant COMMONWEALTH OF PENNSYLVANIA v. CALVIN NORRIS Appellant

Nos. 1178 WDA 2021, 1179 WDA 2021

No. J-S14043-22

Superior Court of Pennsylvania

July 13, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered August 30, 2021 In the Court of Common Pleas of Mercer County Criminal Division at No(s) CP-43-CR-0001475-2016, CP-43-CR-0001476-2016

Joseph D. Seletyn, Esq.

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PELLEGRINI, J.

Calvin Norris (Norris) appeals two related orders of the Court of Common Pleas of Mercer County (PCRA court) denying his petitions for post-conviction relief. In 2016, Norris was implicated in the non-fatal shooting of Kimberly Odem and the fatal shooting of Percey Godfrey which occurred moments later the same night. Norris admitted that he shot those two individuals, but he claimed that he did so in self-defense.

Following a jury trial, Norris was found guilty of first-degree murder and aggravated assault. He was sentenced to a prison term of life as to the murder count and a consecutive term of 102 to 240 months as to the assault count. In Norris' post-conviction petition,^[1] he argued that his trial counsel was ineffective in allowing the jury to consider the fact that the firearm he used was stolen as evidence of culpability. He also contended that counsel was ineffective in failing to advance theories of "imperfect" self-defense/voluntary manslaughter on his behalf. The PCRA court denied the petition in its entirety and we now affirm.

This Court has previously summarized the facts of the underlying case as follows:

[Norris'] convictions arose from two shootings that occurred around 11:30 p.m. on August 14, 2016. Victim Kimberly Odem testified that she bought crack cocaine from [Norris] earlier on the day of the crimes. The crack turned out to be fake, and Odem and her boyfriend, deceased victim Percy Godfrey, had an altercation with [Norris] on the same evening, a few hours prior to the shootings. Surveillance video from 10:30 [p.m.] on the evening of the shootings depicted [Norris] entering a convenience store appearing as though he had been in an altercation.

Just before she was shot on the northeast corner of New Castle Street in Sharon, Pennsylvania, Odem heard someone call her name. She turned to look, and [Norris] opened fire, hitting Odem in the jaw, left hand, and shoulder. Police recovered three nine-millimeter casings near the site of the Odem shooting. Odem had known [Norris] for approximately ten years, and she consistently identified him as the shooter. Odem was hospitalized for two months and, as of the time of trial, needed several additional surgeries.

No eyewitness observed the fatal altercation between [Norris] and Godfrey, but it took place very shortly after the shooting of Odem. Neighbors reported hearing two or three shots, a pause, and then an additional series of shots fired. Police found Godfrey's corpse roughly 150 feet from the site of the Odem shooting. Godfrey suffered bullet wounds in the leg and in the abdomen. Both bullets entered Godfrey's body from behind. The fatal shot entered Godfrey's left mid-back and exited the right front of his lower chest. The bullets were not fired from point blank range. Police recovered eight spent nine-millimeter casings approximately 62 feet from Godfrey's body. [Norris] suffered a stab wound in the abdomen, and police found a knife in Godfrey's hand with [Norris'] blood on it. The convenience store surveillance footage from earlier in the evening did not depict [Norris] bleeding from the abdomen.

Shortly after the shootings, [Norris] knocked on the door of his aunt, Regina Norris, who lived very near the crime scene. There, he asked his cousin, Alvin Hancock, Jr., to drive him to a hospital in Youngstown, Ohio, rather than Sharon Regional Hospital. [Norris] claimed he had been stabbed after having oral sex with another man's girlfriend. [Norris] and Hancock arrived at St. Elizabeth Hospital in Youngstown shortly after midnight on August 15, 2016. Surveillance video depicted [Norris] walking across a parking lot from Hancock's car to the hospital entrance with no obvious impairment.

Corporal Randolph Guy of the Pennsylvania State Police interviewed [Norris] in the hospital at 7:20 a.m. on the morning of August 15, 2016 after having interviewed family members of the shooting victims. Corporal Guy wore plain clothes and did not give [Norris] Miranda warnings. The interview lasted five to ten minutes. [Norris] claimed he was stabbed a few blocks from the hospital.

Police retrieved a nine-millimeter Luger handgun from underneath some other items on Norris' front porch. DNA testing revealed that [Norris'] DNA was on the gun. Crime lab analysis established that the 11 nine-millimeter casings recovered from the scenes of the Odem and Godfrey shootings were fired from the Luger handgun.

Commonwealth v. Norris, No. 1604 WDA 2017 (Pa. Super. December 11, 2018) (unpublished memorandum) (emphasis added, footnotes omitted).

Along with the above-mentioned counts of murder and aggravated assault, the Commonwealth had also initially charged Norris with receiving stolen property^[2] based on the prior reported theft of the firearm used in the shooting. At the close of the Commonwealth's case, the trial court granted a demurrer as to that count. However, by then, the jury had already heard evidence that the firearm was stolen. The jury was then advised at multiple stages by the trial court and the Commonwealth that it could consider that fact when determining if Norris acted in self-defense. See Trial Transcript, 7/17/2017, at pp. 32-33; Trial Transcript, 7/18/2017, at p. 62.

After Norris was found guilty, he appealed and the judgment of sentence was upheld. Norris then filed the PCRA petition before us in which he claimed in relevant part that trial counsel was ineffective in not seeking to exclude all evidence that the firearm he had used was stolen and then permitting the evidence to be used to establish his culpability in the shootings. Moreover, Norris argued that counsel erred in only presenting to the jury a claim of complete self-defense, excluding alternative theories of voluntary manslaughter, a lesser offense of murder.^[3] The PCRA court held an evidentiary hearing and Norris' trial counsel testified. See PCRA Hearing Transcript, 5/24/2021, at pp. 14-40.

The PCRA court denied relief and Norris timely appealed the order denying his PCRA petition.^[4] In his appellate brief, he raises four issues for our consideration:

1.Whether the trial court erred in ruling that trial counsel was not ineffective for failing to file a pre-trial Habeas Corpus dealing with the receiving stolen property lodged against [Norris.]

2. Whether the PCRA court erred in ruling that trial counsel was not ineffective for failing to object to the Commonwealth's closing argument pertaining to the receiving stolen property and stolen gun[.]

3.Whether the PCRA Court erred in ruling that trial counsel was not ineffective for failing to object to the trial court's jury instructions in which the Court informed the jury that even though the receiving stolen property charge had been dismissed, the jury could still consider any evidence tending to show that the gun was proven to be stolen[.]

4.Whether the PCRA Court erred in ruling that trial counsel was not ineffective in failing to argue in her closing argument "imperfect self-defense" and involuntary manslaughter[.]

Appellant's Brief, at 4.

I.

The four issues before us all involve claims of ineffective assistance of trial counsel. Counsel is presumed to be effective, and a petitioner for PCRA relief bears the burden of proving each element of ineffectiveness by a preponderance of the evidence. See Commonwealth v. Postie, 200 A.3d 1015, 1023 (Pa. Super. 2018). The three elements of an ineffectiveness claim are (1) that the underlying claim of error has arguable merit; (2) that counsel had no reasonable basis for the disputed aspect of her performance; and (3) that as a result of counsel's deficient performance, the petitioner suffered prejudice. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987); see also Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (same). In the context of a PCRA claim, "prejudice" means that, "absent counsel's conduct, there is a reasonable probability [that] the outcome of the proceedings would have been different." Commonwealth v. Velasquez, 216 A.3d 1146, 1149 (Pa. Super. 2019) (citation omitted).

Failing to satisfy any of these prongs is fatal to an ineffectiveness claim. Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012). Additionally, counsel cannot be deemed ineffective for failing to raise claims that are meritless. See Spotz, 896 A.2d at 1210.

A.

Norris' first claim is that trial counsel was ineffective in not seeking to have the charge of possession of stolen property dismissed prior to trial. He argues that even though the charge was later dismissed at the close of the evidence, it was still prejudicial for the jury to know the firearm was stolen when considering the remaining counts. We find no merit in this claim.

The offense of receiving stolen property requires proof that the defendant "(1) intentionally acquir[ed] possession of the movable property of another; (2) with knowledge or belief that it was probably stolen; and (3) the intent to deprive permanently." Commonwealth v. Robinson, 128 A.3d 261, 264 (Pa. Super. 2015); see also 18 Pa.C.S § 3925(a). The knowledge element of the crime may be proven circumstantially. See Commonwealth v. Gomez, 224 A.3d 1095 (Pa. Super. 2019). The fact-finder may infer such knowledge if...