Com. v. Norris, M.

J-A26033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MATTHEW TIMOTHY NORRIS

Appellant No. 101 MDA 2015

Appeal from the PCRA Order of December 23, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No.: CP-21-CR-0001592-2000

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 07, 2015

Matthew Timothy Norris appeals the December 23, 2014 order

dismissing his third petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.

On May 12, 2001, a jury convicted Norris of, inter alia, first-degree

murder.1 The PCRA court aptly relates the events underlying Norris’

conviction:

The Commonwealth’s case consisted of both eyewitness
testimony and circumstantial evidence. The eyewitness
testimony came from Dontae Chambers. He testified that he,
Norris, and Emmett Lockhart had planned to rob Sydney Bull of
drugs and money. The three of them were in a vehicle which
Bull, carrying a duffel bag, voluntarily entered.
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
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Norris gave directions as Lockhart drove them into the
mountains. At some point, Norris produced a pistol[-]grip
shotgun which he held on Bull for the remainder of the trip.
They eventually reached a place along a mountain road where
they parked in a pull-off area.

They marched Bull at gunpoint 20 to 30 yards into the woods.
When they came to a clearing, Bull and Lockhart began to
scuffle. Norris shoved the shotgun into Bull’s face and he froze.
The barrel of the shotgun was only 2 or 3 feet from his face as
he pleaded for his life. Then “from out of the blue, out of
nowhere, [Norris] shot [Bull].”

Bull fell onto his back. Norris went through his duffel bag and
began digging through his front pockets. Lockhart had brought
along a gas can and began pouring gasoline onto the body.
Norris threw lit matches onto the victim’s chest and the fire
spread to his head and down to his feet. Lockhart then set the
gas can on fire about 20 feet from Bull’s head.

PCRA Court Opinion (“P.C.O.”), 4/27/2015, at 1-2 (minor modifications for

clarity).

After Norris was convicted, a separate penalty phase trial was held to

determine whether Norris should be sentenced to death. On June 14, 2001,

the trial court entered an order declaring a mistrial in Norris’ penalty-phase

proceedings because the jury was deadlocked, and noted that the court

would enter a sentence of life in prison without parole. On June 20, 2001,

the trial court formally entered Norris’ judgment of sentence. After lengthy

post-trial proceedings, Norris’ timely-filed post-sentence motions were

denied on November 16, 2001.2 On December 10, 2001, Norris timely

____________________________________________

2
Had the post-sentence motions as originally filed been the ultimate
subject of the ruling, they would have been deemed denied in October of
(Footnote Continued Next Page)

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appealed his judgment of sentence to this Court. We affirmed his judgment

of sentence on October 7, 2003. Norris sought permission for allowance of

appeal from our Supreme Court, which denied his petition on August 17,

2004. Norris since has filed two petitions pursuant to the PCRA, both of

which have been denied.

Norris filed the instant, serial pro se PCRA petition on January 2, 2014.

The PCRA court appointed counsel, and, during the pendency of the last of

several extensions that the PCRA court granted Norris to file an amended

PCRA petition, on October 8, 2014, the Commonwealth filed a motion to

dismiss Norris’ petition. The PCRA court directed Norris to file a brief in

opposition to the Commonwealth’s motion, and, after a hearing, dismissed

Norris’ PCRA petition as untimely on December 23, 2014. On January 13,

2015, Norris timely filed the instant appeal. On January 28, 2015, the PCRA

court ordered Norris to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Norris timely filed his concise

statement on February 13, 2015, and the PCRA court entered the above-

excerpted Rule 1925(a) opinion on April 27, 2015, ripening this case for our

review.
_______________________
(Footnote Continued)

2001 pursuant to Pa.R.Crim.P. 720(B)(3)(a), which provides that, in the
absence of a trial court ruling, post-sentence motions are denied by
operation of law 120 days after they are filed. However, during post-trial
proceedings, numerous continuances were granted and Norris’ post-
sentence motions were not submitted in full until he filed supplemental post-
sentence motions by leave of court on October 12, 2001.

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Norris raises the following issues for our consideration:

1. Whether the PCRA court erred as a matter of law and/or
abused its discretion in dismissing [Norris’] PCRA petition as
untimely?

2. Whether the PCRA court erred as a matter of law and/or
abused its discretion in dismissing [Norris’] PCRA petition
alleging after-discovered evidence on the basis of finding the
after-discovered witness not credible?

Brief for Norris at 4.

Well-established principles govern our review of an order denying

post-conviction relief:

Our standard of review of the denial of a PCRA petition is limited
to examining whether the court’s determination is supported by
the evidence of record and free of legal error. This court grants
great deference to the findings of the PCRA court if the record
contains any support for those findings. Further, the PCRA
court’s credibility determinations are binding on this Court,
where there is record support for those determinations.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(citations omitted).

It is well-established that the PCRA time limits are jurisdictional, and

are meant to be both mandatory and applied strictly by the courts to all

PCRA petitions, regardless of the potential merit of the claims asserted.

Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000);

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). “[N]o

court may properly disregard or alter [these filing requirements] in order to

reach the merits of the claims raised in a PCRA petition that is filed in an

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untimely manner.” Murray, 753 A.2d at 203; see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the

three exceptions to the one-year time limit enumerated in

subsection 9545(b) of the PCRA, which provides as follows:

(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:

(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the claim in violation of the Constitution or
laws of this Commonwealth or the Constitution or laws of
the United States;

(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the United States
or the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.

(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.

42 Pa.C.S. § 9545(b).

A judgment of sentence “becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

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for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Norris’ judgment of

sentence became final on November 15, 2004.3 Thus, the deadline for

Norris to file a timely PCRA petition was November 15, 2005. Norris filed the

instant serial PCRA petition on January 2, 2014. Thus, Norris’ instant

petition on its face is untimely under the PCRA.

Norris does not dispute this fact. Instead, he invokes the newly-

discovered fact exception to the PCRA’s time limit set forth in subsection

9545(b)(1)(ii), contending that the new facts in question were unknown to

him at the time of trial; that he could not have ascertained them before he

received the purportedly new witness’ affidavit in December 2013; and that

he filed the instant PCRA petition within sixty days of when he received that

affidavit.

The newly-discovered fact in question is embodied in a sworn affidavit

offered by Michelle Greer. At the time of the murder in question, Greer was

married to Joseph Brenize. In her affidavit and in her PCRA hearing

testimony, she asserted that, on the night of the murder, she and Brenize

(collectively, “the Brenizes”) hosted a two-month wedding “anniversary”

party, and that she remembers that Chambers was present at the party and

____________________________________________

3
The Pennsylvania Supreme Court denied Norris’ petition for allowance
of appeal on August 17, 2004. As of that date, he had ninety days to seek a
writ of certiorari from the United States Supreme Court, which deadline fell
on November 15, 2004. See U.S. Sup. Ct. R. 13. Because he did not do so,
his judgment of sentence became final on that date.

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did not leave until 11 P.M. or later. Consequently, he could not have been at

the scene of the murder. Were this the case, it would support Chambers’

recantation testimony during Norris’ trial to the effect that he was not

present at the scene of the murder (and thus, knew nothing of who was

there or what they did), and that the elaborate, self-incriminating, contrary

account that he provided to investigators (and again during his direct

examination at trial), which evidently was entirely consistent with the

physical evidence, was in fact a fabrication that he offered in an effort to

appease investigators. In her affidavit, Greer also asserts that shortly after

the events in question, and before any of the defendants’ trials, she enlisted

in the United States Air Force and sought postings far away from

Shippensburg, eventually arriving at Panama City, Florida, where she still

lived at the time of the PCRA hearing.

Greer attests that she was not contacted by investigators or attorneys

associated with either of the trials spawned by the murder of Sydney Bull.

Indeed, having already left Shippensburg while the investigation of Bull’s

murder was ongoing, she claims to have been wholly unaware of any trial.

Instead, she claims that it was only in 2013, when she was contacted via

Facebook by Norris’ sister, that she heard of Norris’, Lockhart’s, and

Chambers’, convictions for Bull’s murder.4 Norris’ sister allegedly asked

____________________________________________

4
Somewhat supporting the PCRA court’s determination that Greer’s
testimony at the PCRA hearing was less than convincing, her attempt during
(Footnote Continued Next Page)

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whether Greer would be willing to provide Norris with a full accounting of

Greer’s recollections from the night of the murder. She agreed to speak

with Norris, who ultimately convinced her to prepare the notarized

statement. She did so and had it notarized on December 13, 2013.5

Norris alleges that he could not have learned of Greer’s account any

sooner than he did, because only upon his receipt of Greer’s affidavit with
_______________________
(Footnote Continued)

cross-examination to establish the chronology regarding her establishment
of a Facebook account, Norris’ sister’s unsolicited effort to reach out to Greer
through that account, and the events that followed, including when she first
contacted Norris in prison to discuss with him her recollection of the evening
of April 24, 2000, revealed several inconsistencies. For example, Greer
testified that she established the account a year or two before Norris
contacted her. However, defense counsel presented her with a document
providing the “born-on date” for Norris’ account, which indicated that she
had established it in September 30, 2013. Her notarized affidavit was dated
December 13, 2013, approximately six weeks later. However, she also
testified that, before preparing a notarized affidavit, she had discussions
with Norris and, on at least two occasions, sent him versions of her affidavit
that were not notarized, each of which was returned to her because she
failed to address the post in compliance with prison requirements—and only
thereafter did she have her affidavit notarized and successfully transmit it to
Norris. Notes of PCRA Testimony, 12/18/2014, at 30-35. Although the
matter is not developed at length by either party or the PCRA court, this
timeline, as related by Greer, simply does not appear to add up.
5
Although it mattered more to the PCRA court’s merits review—and
specifically its assessment of Greer’s credibility—than it does to our
jurisdictional ruling, we find it noteworthy that it emerged at the PCRA
hearing that during or in the wake of Greer’s initial conversations with
Norris, she and Norris became involved in something resembling a romantic
relationship. See Notes of PCRA Testimony, 12/18/2014, at 35-36. The
trial court treated this as a fact that undermined Greer’s credibility.
See P.C.O. at 4 (“When [Greer] conceded on cross-examination that she
was currently, and had been for some time, in a romantic relationship with
Norris, her credibility was destroyed.”).

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her account of the events of April 24, 2000, could he have understood the

substance and exculpatory value of her potential testimony. See Brief for

Norris at 7, 10. He filed the instant PCRA petition on January 2, 2014, well

within sixty days following his receipt of her December 2013 affidavit.6

To gain the benefit of the newly-discovered fact exception, the

petitioner must prove that “the facts upon which the claim is predicated

were unknown to the petitioner and could not have been ascertained by the

exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii). Additionally, the

petitioner must demonstrate that the petition has been filed within sixty

days after the date the claim could have been presented, i.e., when he

learned of the evidence in question. See 42 Pa.C.S. § 9545(b)(2).

The newly-discovered fact timeliness exception is distinct from the

after-discovered evidence basis for relief stated in 42 Pa.C.S. § 9543. To be

eligible for relief under section 9543, the “petitioner must plead and prove

by a preponderance of the evidence . . . [t]hat the conviction or sentence

resulted from . . . the unavailability at the time of trial of exculpatory

____________________________________________

6
Implicit in the evidence adduced at the hearing is that some
substantial period of time separated Greer’s initial discussions with Norris,
during which, we can assume, some aspects of what Greer ultimately
included in her affidavit were made known to Norris. Thus, it is at least
plausible that he filed his PCRA petition more than sixty days after he first
learned, e.g., that Greer was prepared to state under oath that Chambers
was at her party on the night of the murder. However, because the PCRA
court did not so find, we assume without deciding that Norris satisfied
subsection 9545(b)(2)’s sixty-day requirement.

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evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced.” 42 Pa.C.S. § 9543.

Conversely, the newly-discovered fact exception set forth in subsection

9545(b)(1)(ii) pertains solely to timeliness for purposes of jurisdictional

analysis, and it “does not require any merits analysis of the underlying

claim. Rather, the exception merely requires that the ‘facts’ upon which

such a claim is predicated must not have been known to appellant, nor could

they have been ascertained by due diligence.” Commonwealth v.

Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (quotations and citations

omitted). “A petitioner must clear the first hurdle, the exception to the

PCRA time limit . . ., in order to obtain review on the merits” under section

9543. Commonwealth v. Soto, 983 A.2d 212, 215 n.6 (Pa. Super. 2009).

In finding that Norris failed to plead and prove the newly-discovered

fact exception, the PCRA court explained as follows:

We were satisfied that the instant petition was untimely because
[Norton] had knowledge of Greer’s party years before he filed
this petition. Although Greer had never testified previously,
several other people at the party were interviewed as part of the
murder investigation. See Notes of PCRA Testimony (“N.P.T.”),
12/18/2014, at 57-58. At Chambers’ murder trial, which
occurred seven months after [Norris’] trial, people who had
attended the party did testify. Id. at 63. Not only had [Norris’]
parents been present every day of Chambers’ trial, but [Norris]
had actual knowledge of the party and had discussed it with at
least one of the attendees before Chambers’ trial. Id. at 56, 62,
64.

We were also satisfied that the exercise of due diligence would
have led [Norris] to Greer long before she [sent Norris] her
affidavit on [December 13, 2013]. Id. at 31. Although Greer
enlisted in the Air Force in July 2000, her father, sister and

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grandmother remained in this area. Id. at 14-15. Greer also
visited the area twice during her enlistment, for “4 to 5 days
each time.” Id. at 16.

P.C.O. at 3 (citations moved from footnotes into text). Thus, although the

PCRA court went on to address and reject the merits of Norris’ petition under

the test applicable to after-discovered evidence, see P.C.O. at 3-5, it

nonetheless found that it lacked jurisdiction to do so, and we agree.

Notably, Norris’ argument rebuts only the latter point—that Greer

would have been impossible for him to reach, even upon a duly diligent

effort to do so, as a consequence of her active duty in the air force. This

bald assertion, however, is belied by both common sense and the record.

Steven Junkin, at the time of the PCRA hearing the Chief of Police for

Hampden Township Police Department, and a corporal in the Pennsylvania

State Police during the investigation of Bull’s murder, testified that, in

connection with other investigations, he had located active-duty military

personnel with little difficulty. N.P.T. at 56-57. When asked to elaborate, he

explained how one might locate active military personnel:

First is you could contact family members and ask them where
the person is located. You could go to a recruiting station and
ask them to locate. In the area here, there’s the Army War
College, there’s the Navy Depot, there’s various places that you
could go and reach out and ask them.

Id. Moreover, Greer served in the Air Force for six years before her

honorable discharge. Consequently, even if she had not been available

during her service, she was a civilian who could have been located for the

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latter half of the time between Lockhart’s trial and the date of filing for the

instant PCRA petition.

In any event, neither Lockhart nor she provides a concrete basis

beyond conclusory assertions upon which to conclude that Greer could not

have been located, had Norris or his counsel endeavored to do so, or that

she would not have been amenable to process or otherwise available at the

time of trial or during the years that separated her service from when she

furnished the affidavit upon which Norris’ petition relies. Thus, this

argument is not responsive insofar as Norris’ conclusory assertion that she

would not have been accessible to him until after her discharge satisfies, at

most, his burden to plead that fact. It did not obligate the PCRA court to

conclude that he had proved it on the record developed in these

proceedings.

More importantly, though, Norris does not even attempt to rebut the

PCRA court’s strongest bases for finding Norris’ petition untimely, i.e., that

the Greer party was raised by several people during the investigatory phase

of this case; that several of them testified at Chambers’ trial regarding the

party; and that Norris’ parents attended every day of the Chambers trial.

Because we find no basis upon which to conclude that Greer could not have

been found by someone interested in finding her years before Norris’ sister

initiated contact with Greer and put her in touch with Norris, Norris’ lack of

argument disputing the PCRA court’s identification of the various ways in

which Norris knew or should have known of the party and discerned the

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value of seeking out attendees for further investigation years before Greer

surfaced effectively waives any intended challenge to that critical aspect of

the PCRA court’s reasoning. Consequently, we must conclude that the

record supported the PCRA court’s determination that Norris did not plead

and prove that the circumstances of this case warranted application of the

newly-discovered fact exception to the PCRA’s time limit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/7/2015

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