HomeMy WebLinkAboutCP-21-CR-1592-2000
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MATTHEW TIMOTHY NORRIS
NO. CP-21-CRIMINAL 1592 - 2000
IN RE: PETITION FOR RELIEF UNDER POST CONVICTION RELIEF ACT
BEFORE GUIDO, J.
OPINION AND ORDER OF COURT
Petitioner is serving a life sentence as a result of his conviction for first degree
murder and other related crimes. Currently before us is his timely petition for relief
under the Post Conviction Relief Act. 1 His request for relief is premised upon numerous
allegations of error on the part of his former counsel. Specifically, he alleges that counsel
was ineffective in 1) failing to object to improper closing arguments made by the
prosecutor, 2) refusing to call a certain witness at trial; 3) not accepting the court's offer
of a mid-trial continuance; 4) failing to conduct independent testing on the murder
weapon; and 5) failing to preserve certain issues for appellate review. For the reasons
hereinafter set forth, the petition will be denied.
In order to be entitled to post conviction relief as a result of counsel's
ineffectiveness, petitioner must prove by a preponderance of the evidence that his
conviction resulted from ineffective assistance of counsel "which, in the circumstances of
the particular case, so undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place." 42 Pa. C. S.A. S 9543
1 42 Pa. C.S.A. ~ 9541 et seq.
NO. CP-21-CRIMINAL 1592-2000
(a)(2)(ii). Counsel is presumed to be effective until the defendant proves otherwise.
Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Our appellate courts have
held that a petitioner can succeed under this particular section of the Act only if he proves
all of the following:
(1) that the underlying claim is of arguable merit; (2) that counsel's action
or inaction was not grounded on any reasonable basis designed to
effectuate his client's interest; and (3) that but for that act or omission,
the outcome of the proceedings would have be different.
Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 88 (1998).
Factual Background
Before getting into a discussion of the issues raised by petitioner, it is helpful to
recount the factual background of this case. The Commonwealth's case consisted of both
eyewitness testimony and circumstantial evidence. The eyewitness testimony came from
a Dontae Chambers.2 During his direct testimony he recounted the events surrounding
the murder. He testified that he, the petitioner and the codefendant, Emmett Lockhart
(hereinafter "Lockhart"), had planned to rob the victim Sydney Bull of drugs and money.
Bull was acquainted with all three men. Pursuant to a prearranged meeting, Bull joined
the three men in a car being driven by Lockhart.
Petitioner gave directions as Lockhart drove them into the mountains. At some
point, petitioner 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.
2 Chambers was also charged in connection with the killing, but tried at a later time.
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NO. CP-21-CRIMINAL 1592-2000
They marched Bull at gunpoint 20 to 30 yards into the woods. When they came
to a clearing, the victim and Lockhart began to scuffle. The petitioner shoved the
shotgun into his face and Bull 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, Matt shot
Sydney.,,3
Bull fell onto his back. The petitioner went through the victim's duffel bag and
then began digging through his front pockets. Lockhart had brought along a gas can and
began pouring gasoline onto the body. Petitioner set the corpse on fire. The gas can was
placed several feet from Bull's head where it also was burned.
During the course of a masterful cross examination by petitioner's counsel,
Chambers recanted his entire testimony. He denied any knowledge of, or involvement in,
the killing of Sydney Bull. He said that he had made up everything he told the police
"just to get them off my back."4
However, Chambers gave details which were corroborated by other evidence,
including physical evidence found at the scene. Furthermore, those details had never
been made public. They included the following:
. The victim was shot once with a shotgun.
. The wound was to the left side of his face in the mouth area.
. The shot was fired at very close range.
. The victim was killed before he was burned.
. The victim was lying on his back when he was burned.
. The body was found in a clearing in the woods about 50 feet from a pull
off area along a mountain road.
. The body had been doused with gasoline.
. A melted plastic gas container was found several feet from the head of the
body.
3 Trial Transcript, Volume 1, p. 200. After relating these events, Chambers began sobbing uncontrollably,
necessitating a recess.
4 Trial Transcript, Volume 2, p. 58.
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NO. CP-21-CRIMINAL 1592-2000
. The change and keys found near the body made it clear that someone had
gone through the victim's pockets.
. The victim's book bag was found at the scene.
While Chambers gave numerous contradictory statements to the police, all of the above
facts were contained within those statements.
In addition to the eyewitness testimony and the corroborating physical evidence
referred to above, there was other circumstantial evidence to link the petitioner to the
murder. The victim was killed by a 12-gauge shotgun. The petitioner owned a 12 gauge
pistol grip shotgun.s The victim was killed with a Remington NO.8 shotgun shell. The
petitioner had purchased a box of Remington NO.8 shotgun shells just a few days before
the murder. Finally, the victim's DNA was found on the petitioner's shotgun, about five
inches from the front end of the barrel.
Failing to Object to Closing Arguments
Petitioner alleges that the prosecutor made numerous objectionable statements in
his closing argument. They fall into two categories: 1) improper statements of the
prosecutor's personal opinion and 2) references to matters not in evidence. We are not
persuaded that he is entitled to relief as a result of any statements made by the prosecutor
during his closing argument.
In the first instance, petitioner has failed to prove that the underlying claim has
merit. Even if they were objectionable, none of the statements were so egregious as to
justify the grant of a mistrial. All of the alleged improper statements "were based on the
evidence or derived from proper inferences". See Commonwealth v. Cox, 581 Pa. 107,
5 Commonwealth Exhibit 13. It is interesting to note that Chambers described the shotgun as a pistol grip
shotgun in his statements to the police.
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NO. CP-21-CRIMINAL 1592-2000
863 A.2d 536, 547 (2004). We are satisfied that they were fair comment on the evidence
and were not such as to "prejudice the jury, forming in their minds fixed bias and
hostility towards the accused that would prevent them from properly verifying the
evidence and rendering a true verdict." Id None of the statements in this case crossed
the line between permissible "oratorical flair" and impermissible "prosecutorial
misconduct." Id
Furthermore, we are satisfied that petitioner was not prejudiced by the statements.
We note that we consistently impressed upon the jury its function of deciding the facts
from the evidence. For instance, at the commencement of closing arguments we
instructed the jury as follows:
THE COURT:
Good morning, and welcome back. The evidentiary portion
of this case is closed. We will now proceed to closing
arguments.
Before counsel speaks, I have to advise you again that the
speeches of counsel are not part of the evidence, and you
should not consider them as such. However, in deciding
this case, you should be careful to consider the evidence in
light of the various reasons and arguments that each
counsel is about to present. It is the right and duty of each
lawyer to discuss the evidence in a manner which is most
favorable to the side that he represents. You should be
guided by each lawyer's arguments to the extent that they
are supported by the evidence and insofar as they aid you in
applying your own reason and common sense. It is for you
and you alone to decide this case based upon the evidence
as it was presented from the witness stand in accordance
with the law that I will give you at the conclusion of the
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arguments.
6 Trial Transcript, Volume 8, pp. 7-8.
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NO. CP-21-CRIMINAL 1592-2000
Refusing to Call a Defense Witness
A crucial piece of Commonwealth evidence was the presence of the victim's
DNA on the barrel of petitioner's shotgun. While the state police lab was able to
determine that the DNA belonged to the victim, it could not determine whether the
substance was blood, saliva, sweat, or some other bodily fluid. The defense explanation
for the presence of the victim's DNA was that it must have been deposited on the shotgun
when he handled it.
Petitioner alleges that trial counsel was ineffective in failing to call a Dave Brown
to corroborate his own testimony that the victim had been handling the shotgun within
days of the incident. His request for relief on this basis fails for two reasons. First,
counsel had a reasonable strategic basis for not calling Mr. Brown. As counsel stated:
Prior to this murder charge having been brought, with the exception of
some summary conviction that didn't amount to anything, Matt Norris had
a clean record. There was no indication of any crime of violence in his
past or of any violent propensity.
The witness, Dave Brown, if called to testify, would have testified that on
a prior occasion he, Dave Brown, and Matt Norris, my client, and Sydney
Bull, the victim, were riding around in a car casing a drugstore, I believe,
intending to rob it.
I didn't want to go there. I didn't want to open the door. I believe I
successfully prevailed at pretrial in preventing Mr. Keating from getting
into that incident, and I didn't want to open that door?
Second, we were not persuaded that Mr. Brown would have testified as petitioner
claims. We note that Mr. Brown was not called to testify at the PCRA hearing. On the
other hand, the Commonwealth called Sergeant Steve Junkin who had interviewed Mr.
Brown as part of the original murder investigation. Sergeant Junkin had determined that
the victim, petitioner and Mr. Brown were in fact "casing" a potential robbery target.
7 Transcript ofPCRA Proceedings, pp. 9-10.
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NO. CP-21-CRIMINAL 1592-2000
While Mr. Brown had told him that petitioner's shotgun was in their car, he specifically
denied that the victim had handled it. 8
Not Accepting the Trial Court's Offer of a Mid Trial Continuance
Petitioner's counsel requested a mistrial based upon the Commonwealth's failure
to disclose "exculpatory" evidence in discovery. During his testimony, Chambers stated
that he had told the police that he and Bernard Adams had been on the mountain earlier
on the day of the murder. The circumstances surrounding that statement were described
by Cpl. (now Sergeant) Junkin in the following exchange with Lockhart's counsel:
Q. At any point in time during his story on the 9th, did he say anything to
you with regard to previously being up on the mountain with anyone
else earlier in the day?
A. Yes.
Q. Okay. What did he tell you in regards to that?
A. He stated at one point when he was discussing about the robbery of
Sydney, that he had been dropped off earlier in the day up at the wall,
which would have been the location half a mile to a mile from that
scene. And that he and another black man were dropped off. I asked
him about that.
Q. How? I mean, how did you ask him about that? Did you shout at
him? Did you threaten him? What did you do?
A. No, I said another black man? I said, who was it? He said I don't
know. I said, Dontae, you were dropped off in the middle of the
mountain with a guy. Who were you dropped off with? And he said,
Nard.
Q. Who you knew to be?
A. Bernard Adams.
Q. What did you say in that regard?
A. I basically sat back in my chair, folded my arms, and said, Dontae, I
said, you are telling me that two black men got dropped off in the
middle of the mountain, in the middle of the afternoon to hang out?
And he said, no. And I said, why?
Q. And he said?
A. Because rednecks would mess with us.
Q. Did you put that in your report at all?
A. No.
8 Transcript ofPCRA Proceedings, p. 32.
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NO. CP-21-CRIMINAL 1592-2000
Q. Why not? I mean, here he said that he was a half-mile away from the
murder scene on the day with somebody else in the middle of the day.
Why didn't you put that in your report, Corporal?
A. Because it was a fleeting statement. It was one of those where he
started to go off. I redirected. That happens in every interview. And
many interviews in this particular case where statements were made
that were a quick one, and right away it was recanted, and was proven
or obviously not true.9
The Commonwealth recounted the passing nature and immediate recantation of
the reference to Bernard Adams. It also explained the circumstances surrounding its
failure to provide the details of the statement to the defense. We were satisfied that the
failure was inadvertent. While we denied petitioner's request for a mistrial, we offered to
recess for up to several days to give counsel the opportunity to conduct additional
investigation.lo Both counsel for petitioner and his co-defendant elected to proceed with
the trial. Petitioner argues that he is entitled to relief because his counsel was ineffective
for not taking advantage of the offered continuance. We disagree.
In the first instance, the petitioner has not come forward with any evidence to
suggest that further investigation would have revealed anything helpful to his case. We
did not hear from Bernard Adams, nor from anyone else, to show that Chamber's fleeting
reference to being on the mountain with him was anything more than another one of his
multiple fabrications.
In addition, and perhaps more importantly, petitioner's counsel had a solid
strategic reason for not pursuing the Adams matter. His theory of the case was that
neither his client, nor Chambers, had been on the mountain at all on the day of the
murder. As petitioner's trial counsel explained under questioning from PCRA counsel:
Q. Why didn't you then take him up on the continuance that he offered
9 Trial Transcript, Volume 3, pp. 69-71.
10 Transcript of PCRA Proceedings, pp. 31-32.
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NO. CP-21-CRIMINAL 1592-2000
regarding preparation or any investigation that you may have needed
to look at the statement made by Dontae Chambers implicating
Bernard Adams?
A. There were two reasons, Ms. Waller. One was we had a jury in the
box. It wasn't a matter of inconveniencing them so much as it was
that I didn't know where to go with this information no matter how
much time Judge Guido would have given me. I didn't believe for one
second that if I would have run down Bernard Adams that he was
going to admit to murdering Sydney Bull, and I just didn't want to take
the time pursuing that effort.
Also, I never believed at that time, and to this day, that Dontae
Chambers was on the mountain at all. If felt that we were going to
h. I 11
pursue t at vigorous y.
(emphasis added).
Failure to Conduct Independent Testing on the Murder Weapon.
Petitioner alleges that his counsel was ineffective for failing to conduct
independent testing of the victim's DNA retrieved from the shotgun. He contends that
independent testing would prove that the substance was not blood. This would weaken
the Commonwealth's argument that the shotgun was the murder weapon and would
bolster petitioner's position that the DNA was deposited on the shotgun barrel when the
victim handled it. However, petitioner has again failed to come forward with any
evidence to show that further testing would have made a difference, or even that further
. 'bl 12
testmg was pOSSl e.
Failing to Preserve Appellate Issues
Finally, petitioner alleges that his former counsel was ineffective in failing to
preserve certain issues for appellate review. Specifically he contends that counsel failed
11 Transcript ofPCRA Proceedings, pp. 13-14. Pursue it vigorously he did. As indicated above, during his
cross examination, Chambers gave credence to the defense theory by recounting his direct testimony.
12 The substance on the barrel of the shotgun was very minute.
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NO. CP-21-CRIMINAL 1592-2000
to preserve the denial of his pretrial suppression motion with regard to 1) statements he
made to the police and 2) blood samples taken from him. Neither issue entitles petitioner
to relief.
With regard to the blood samples, petitioner has not sustained his burden in
connection with the prejudice prong. He did not offer any evidence to show prejudice.
To the contrary, the only evidence on this issue suggested that the blood samples were
not even used at trial. The following exchange with trial counsel put petitioner on notice
of our concerns in this regard:
THE COURT:
How was Mr. Norris' blood used at trial? I don't recall
that.
I don't recall either, Judge. I don't believe there was any
forensic connection between his blood and anything.
THE WITNESS:
Furthermore, despite us having raised the issue at the hearing, petitioner's counsel did not
make any reference in her brief regarding the use of petitioner's blood at trial.
With regard to the statements, we are satisfied that counsel had a reasonable basis
for limiting his appeal to the statements made at the Philadelphia airport. He chose the
issue that he felt gave his client the best chance of success on appeal. 13 Petitioner's
former counsel has vast experience in handling criminal matters, both at the trial and
appellate level. His appeals strategy was to focus on his strongest issues rather than using
a less effective shotgun approach. This is an accepted and effective appellate strategy.
Raising many issues rather than focusing upon the strongest is actually
counterproductive. As our Supreme Court has recently noted:
The approach to appellate advocacy embarked on by present counsel for
Appellant brings to mind the words of the Honorable Ruggero J. Aldisert
of the United States Court of Appeals for the Third Circuit:
13 See Transcript of Proceedings, pp. 7 and 21-22.
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NO. CP-21-CRIMINAL 1592-2000
With a decade and a half of federal appellate court
experience behind me, I can say that even when we reverse
a trial court it is rare that a brief successfully demonstrates
that the trial court committed more than one or two
reversible errors. I have said in open court that when I read
an appellant's brief that contains ten or twelve points, a
presumption arises that there is no merit to any of them. . .
[and] it is [this] presumption. . . that reduces the
effectiveness of appellate advocacy.
As observed by Justice Robert H. Jackson:
Legal contentions, like the currency, depreciate through
over-issue. The mind of an appellate judge is habitually
receptive to the suggestion that a lower court committed an
error. But receptiveness declines as the number of assigned
errors increases. Multiplicity hints at lack of confidence in
anyone. . . [E]xperience on the bench convinces me that
multiplying assignments of error will dilute and weaken
a good case and will not save a bad one."
(citations omitted) (emphasis in original) Commonwealth v. Robinson, 581 Pa. 154 864
A.2d 460 at 479, F.N. 28 (Pa. 2004).
Finally, neither of the underlying claims had merit. Petitioner's blood was drawn
pursuant to a valid search warrant and each of the statements were made in a non-
custodial setting.
For the reasons set forth in the foregoing opinion, we will enter the order that
follows.
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NO. CP-21-CRIMINAL 1592-2000
ORDER OF COURT
AND NOW, this 15TH day of JUNE, 2006, Petitioner's requests for relief under
the Post Conviction Relief Act are DENIED.
By the Court,
Isl Edward E. Guido
Edward E. Guido, J.
Jaime Keating, Esquire
For the Commonwealth
William C. Costopoulos, Esquire
Aria M. Waller, Esquire
For the Petitioner
:sld
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