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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY DAVID NORRIS
Appellant No. 713 MDA 2016
Appeal from the PCRA Order April 20, 2016
In the Court of Common Pleas of Susquehanna County
Criminal Division at No(s): CP-58-CR-0000338-2009
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 28, 2017
Jeffrey David Norris appeals from the order of the Court of Common
Pleas of Susquehanna County dismissing his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-9546. After
careful review, we affirm.
In 2009, Norris, a high school teacher, was under investigation for
sexual offenses he allegedly committed against one of his students, A.R., in
2007. During the course of that investigation, law enforcement officials
obtained a search warrant for Norris’ residence in Montrose, Susquehanna
County, which identified items to be seized as follows:
Blood, semen, vaginal secretions, genetic material, hair,
couch/couch cushions, boxer type male underwear blue and
white in color, couch, blue glass marijuana pipe, marijuana,
telephone answering machine and tapes, electronic
correspondence (e-mail), ((either printed or in digital format)),
computer.
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Application for Search Warrant and Authorization, 2/9/09.
Upon executing the warrant, authorities seized certain microcassette
tapes that were discovered on a bookshelf near the telephone and digital
answering machine. Former State Police Corporal Mark Filarsky1 listened to
portions of three of the tapes and “recognized that there was a conversation
between [two] people, [and] that it appeared to be that it was unknown that
a conversation was being recorded.” N.T. Trial, 10/2/12, at 225. Norris was
subsequently charged with three counts of interception of an oral
communication pursuant to 18 Pa.C.S.A. § 5703(1).
In his “Second Supplemental Omnibus Pretrial Motion,” Norris sought
suppression of the tapes. Specifically, Norris argued that the search warrant
authorized the seizure of “telephone answering machine and tapes.”
Because Norris’ answering machine was digital and did not require tapes, he
argued that the seizure of the tapes exceeded the scope of the search
warrant.
The trial court denied Norris’ motion to suppress the tapes, finding that
“[t]he warrant did not specify that the tapes must fit the answering machine
currently in use by [Norris]. . . . As the Commonwealth sought evidence of
recorded messages, it was reasonable for the officers executing the warrant
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1
At the time of his testimony, Filarsky was no longer employed by the
Pennsylvania State Police.
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to seize the micro-cassettes as ‘tapes.’” Opinion and Order Re: Omnibus
Pre-Trial Motions, 2/17/10, at 4-5.
On October 4, 2012, a jury convicted Norris of three counts of
interception of oral communication. He was acquitted of the charges related
to alleged sex offenses against A.R. On October 29, 2012, the court
sentenced Norris to an aggregate of 6 to 23 months’ imprisonment. Post-
sentence motions were denied, and Norris appealed. This Court affirmed
Norris’ judgment of sentence by memorandum dated November 12, 2013.
See Commonwealth v. Norris, 2053 MDA 2012 (Pa. Super. filed
11/12/13) (unpublished memorandum decision). The Supreme Court denied
allowance of appeal.
Through counsel, Norris filed a timely first PCRA petition on August 14,
2015. On March 28, 2016, the PCRA issued an opinion and notice of intent
to dismiss pursuant to Pa.R.Crim.P. 907. Norris did not file a response to
the court’s Rule 907 notice and, by order filed April 25, 2016, his petition
was dismissed. This timely appeal follows, in which Norris raises the
following issues for our review:
1. Did the [PCRA] court commit an abuse of discretion and err
as a matter of law by impliedly finding that there [are no] issues
of material fact raised in [Norris’] [p]etition and [r]esponse to
[n]otice of [i]ntent to [d]ismiss?
2. Did the [PCRA] court commit an abuse of discretion and err
as a matter of law by impliedly finding that the issues raised by
[Norris] in his PCRA [p]etition lack merit and do not entitle [him]
to PCRA relief?
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3. Did the [PCRA c]ourt commit an abuse of discretion and err
as a matter of law in finding that the police had both probable
cause and a search warrant authorizing the playing of tapes that
contained evidence of [Norris’] wiretap violations when the
evidence was totally unrelated to the crimes that the search
warrant was issued for and the evidence would not have been
discoverable and/or admissible by way of the “plain view
doctrine,” as it was not “readily apparent” from listening to the
tapes that a wiretap violation(s) had occurred?
4. Did trial counsel provide ineffective assistance of counsel in
such a manner as to entitle [Norris] to relief under the [PCRA]?
Brief of Appellant, at 3-4.
Our standard and scope of review for the denial of a PCRA petition is
well-settled. We review the PCRA court’s findings of fact to determine
whether they are supported by the record, and review its conclusions of law
to determine whether they are free from legal error. Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to
the findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level. Id.
We begin by noting that, although Norris lists four issues in his
statement of questions involved, his appellate argument can be distilled to
one claim, i.e., that trial counsel was ineffective for failing to raise and
preserve the claim that the police lacked probable cause and a proper
warrant to play the tapes containing evidence of his wiretap violations.2 To
____________________________________________
2
Although trial counsel attempted to have the tapes suppressed, he did not
raise this specific argument. Accordingly, on direct appeal, this Court found
this claim waived. See Norris, supra at 10-11.
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establish counsel’s ineffectiveness, a petitioner must demonstrate: (1) the
underlying claim has arguable merit; (2) counsel had no reasonable basis for
the course of action or inaction chosen; and (3) counsel’s action or inaction
prejudiced the petitioner. Commonwealth v. Burno, 94 A.3d 956, 964 n.5
(Pa. 2014); Strickland v. Washington, 466 U.S. 668 (1984).
A failure to satisfy any prong of the ineffectiveness test requires
rejection of the claim. The burden of proving ineffectiveness
rests with the Appellant. To sustain a claim of ineffectiveness,
Appellant must prove that the strategy employed by trial counsel
was so unreasonable that no competent lawyer would have
chosen that course of conduct. Trial counsel will not be deemed
ineffective for failing to pursue a meritless claim.
Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007).
As noted above, the tapes in question were seized as part of the
investigation into Norris’ alleged sexual abuse of A.R. Specifically, police
believed, based on a consensual telephone intercept between Norris and a
friend, that Norris was in possession of tapes containing telephone messages
from A.R. Thus, authorities sought permission to seize, inter alia, a
telephone answering machine and tapes from Norris’ residence. Ultimately,
the tapes contained no messages from A.R., but rather recordings Norris had
made of conversations with various school officials regarding his
employment. It was these conversations that led to Norris being charged
with the three wiretap offenses at issue in this appeal. Norris argues that
“the moment law enforcement realized the tapes did not contain telephone
messages from [A.R.], a new search warrant was required in order to play
[them].” Brief of Appellant, at 11. Norris asserts that “[c]ertainly, after
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listening to the first of the three incriminating tapes, law enforcement was
aware that the evidence contained in the micro-cassette tapes might involve
a crime other than the statutory sexual assault crime they were
investigating.” Id. at 12. Thus, they were obliged to apply for a second
warrant.
In support of his claim, Norris relies on United States v. Carey, 172
F.3d 1268 (10th Cir. 1999). There, the defendant was under investigation
for the possession and sale of cocaine. After officials obtained a warrant for
his arrest, the defendant agreed to a search of his apartment. Based upon
that consent, officers seized two computers. Subsequently, a warrant was
obtained authorizing officials to search the computers’ files for “names,
telephone numbers, ledger receipts, addresses, and other documentary
evidence pertaining to the sale and distribution of controlled substances.”
Id. at 1270. During the course of that search, officers discovered numerous
JPG files with sexually suggestive titles, which were found to contain child
pornography. The defendant moved to suppress the JPG files, arguing that
the search of JPG files not pertaining to the sale or distribution of controlled
substances transformed the warrant into a “general warrant” and resulted in
an illegal search of the computers and their files in violation of the Fourth
Amendment.
In response, the government asserted that the JPG files were
admissible under the “plain view” doctrine, which allows officials to properly
seize evidence of a crime without a warrant if: (1) the officer was lawfully in
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a position from which to view the object seized in plain view; (2) the object’s
incriminating character was immediately apparent—i.e., the officer had
probable cause to believe the object was contraband or evidence of a crime;
and (3) the officer had a lawful right of access to the object itself. Id. at
1272. The government argued that “a computer search such as the one
undertaken in this case is tantamount to looking for documents in a file
cabinet, pursuant to a valid search warrant, and instead finding child
pornography.” Id.
The Court rejected the plain view argument outright, on the basis that
the images were contained in closed files and, thus, not in “plain view.”
Additionally, the Court concluded that, based upon the officer’s own
testimony, after viewing the contents of the first JPG file, the officer had
“probable cause” to believe the remaining JPG files contained similar erotic
material. Thus, each time he opened a subsequent JPG file, he expected to
find child pornography and not material related to drugs. Accordingly, he
had consciously expanded the scope of his search and a warrant should have
been obtained.
We begin by noting that, as a decision of the U.S. Court of Appeals for
the 10th Circuit, Carey is not binding on this Court. Moreover, it is
distinguishable. In Carey, the officer testified that, upon viewing the first
JPG file, he developed probable cause to believe the same kind of material
was present on the other JPG files. Thus, it was “plainly evident each time
he opened a subsequent JPG file, he expected to find child pornography and
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not material related to drugs.” Id. at 1273. Conversely, in the case at bar,
Corporal Filarsky could not possibly have known what was on each tape until
he listened to it in its entirety. Norris contends that, once Corporal Filarsky
listened to the first tape, he had reason to believe that evidence contained in
the micro-cassette tapes might involve a crime other than the sexual assault
they were investigating. While this may be true, Corporal Filarsky likewise
had no reason to believe that the tapes might not also contain messages
from the victim. Unlike the computer in Carey, which contained a directory
showing the name and format of each file, Corporal Filarsky had no means
by which to determine the contents of the audiotapes without listening to
them in full. For example, it is possible that a single audiotape may contain
multiple different recordings. It is also possible that a second recording may
be taped over an earlier recording and begin midway through the tape. In
short, it is simply impossible to know what an audiotape contains without
listening to the whole tape.
The facts in Commonwealth v. Rega, 933 A.2d 997 (Pa. 2007)
provide a contrast to Carey. In Rega, the defendant faced charges related
to the robbery of the Gateway Lodge and the murder of its security guard.
Prior to trial, the Commonwealth uncovered evidence of possible
jury tampering involving [Rega] and his mother. [Police]
obtained a recorded conversation between [Rega], in jail, and
his mother, Ms. Rega, in which they discussed the possibility of
planting a family friend on the jury. A search warrant was
executed at the home of [Rega’s] mother to search for evidence
of jury tampering. In executing this search warrant relating to
jury tampering, police found two letters from [Rega] to his
mother in which [he] asked [her] to find somebody who would
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give him an alibi for $500. He outlined the exact testimony he
wanted from this alibi witness to demonstrate that he was not at
the Gateway Lodge on December 21, 2000. In another letter he
instructed his mother how she should testify. At the subsequent
trial, the Commonwealth introduced testimony regarding the
searches and the evidence found in Ms. Rega’s home in
connection with jury tampering and witness tampering.
Id. at 1007. Police used the two letters as the basis to obtain a second
search warrant to look for papers relating to the separate crimes of witness
tampering and inducing perjury.
On appeal, defendant argued that because the jury questionnaires,
which the first warrant authorized the police to seize, were hundreds of
pages long, the police were not justified in opening up and reading the
contents of envelopes that clearly did not contain such hefty documents.
The Supreme Court disagreed, stating that “the warrant properly authorized
a search for papers and documents containing the names of prospective
jurors. These documents could conceivably be one page documents. In
fact, the only way the executing officers could determine whether a
particular piece of paper contained the names of prospective jurors was to
look at it.” Id. at 1013–14 (emphasis added).
Similarly, in this case, the only way for Corporal Filarsky to ascertain
the contents of the audiotapes, and their possible relevance to his initial
investigation, was to listen to them in their entirety. As stated above,
although Corporal Filarsky may have had reason to believe the tapes
contained evidence of other crimes after listening to a portion of them, it
was still equally possible that they contained evidence of the original crime
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under investigation. As such, the original warrant was sufficient to enable
authorities to listen to the audiotapes seized pursuant thereto in their
entirety. Because there was no basis for suppression, Norris’ ineffectiveness
claim must fail, as counsel cannot be deemed ineffective for declining to
pursue a meritless claim. Strickland, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
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Com. v. Norris, J.
Combined Opinion