J.S23032/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
BRUCE NORRIS,                               :
                                            :
                          Appellant         :
                                            :     No. 2512 EDA 2015

                   Appeal from the PCRA Order July 14, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0618592-1975

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 17, 2016

        Appellant, Bruce Norris, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas dismissing his Post Conviction

Relief Act1 (“PCRA”) petition based upon Counsel’s Finley2 letter and

untimeliness.      Appellant claims that the petition was timely under the

PCRA’s “newly recognized constitutional right” exception in 42 Pa.C.S. §

9545(b)(1)(iii), following the decisions of the United States Supreme Court

in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S.

Ct. 1399 (2012). He avers that he filed his pro se PCRA petition within sixty


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc);
see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
J.S23032/16


days of March 21, 2012, the date the Supreme Court rendered its decisions

in Lafler and Frye. We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinion.3    See PCRA Ct. Op., 8/28/15, at 1-3.        Appellant timely appealed

from the order dismissing the instant petition.4

        Appellant raises the following issue in his pro se brief:

               Was Appellant deprived of effective assistance of
            counsel in violation of the Sixth and Fourteenth
            Amendments to the Constitution of the United States and
            article I, Section 9 of the Pennsylvania Constitution when
            his trial counsel failed to advise him fully regarding an
            offer from the Commonwealth that would have allowed
            him to plead guilty in exchange for a sentence of 25 years?

Appellant’s Brief at 3.

        This Court has stated:

              Our standard of review of the denial of a PCRA
              petition is limited to examining whether the court’s
              rulings are supported by the evidence of record and
              free of legal error. This Court treats the findings of
              the PCRA court with deference if the record supports
              those findings.     It is an appellant’s burden to
              persuade this Court that the PCRA court erred and
              that relief is due.

                                    *    *    *


3
  We note that the reconstructed certified record in the case sub judice only
contains documents related to the instant PCRA petition.          The docket
indicates that the pro se PCRA petition was filed on April 18, 2012. It is not
contained in the certified record. Given our disposition, this is of no
moment.
4
    The PCRA court did not issue a Pa.R.A.P. 1925(b) order.



                                        -2-
J.S23032/16


        The PCRA time limitations, and exceptions thereto, are set
        forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii). That section
        states:

           (b) Time for filing petition.—

              (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.

           To invoke one of these exceptions, the petitioner must
        plead it and satisfy the burden of proof. Additionally, any
        exception must be raised within sixty days of the date that
        the claim could have been presented. 42 Pa.C.S.A §
        9545(b)(2). Our Supreme Court “has repeatedly stated
        that the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court cannot hear
        untimely PCRA petitions.”

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-75 (Pa. Super. 2013)

(some citations omitted). “[A] judgment becomes final at the conclusion of

direct review, including discretionary review in . . . Supreme Court of


                                     -3-
J.S23032/16


Pennsylvania, or at the expiration of time for seeking the review.”        42

Pa.C.S. § 9545(b)(3).

      Appellant filed the instant serial PCRA petition on April 18, 2012, thus

it is patently untimely.    See 42 Pa.C.S. § 9545(b)(1).         Therefore, we

determine whether, as averred by Appellant, any timeliness exception

applies in this case.

      The PCRA court court concluded that the decisions of the United States

Supreme Court in Lafler and Frye did not create a new constitutional right

to overcome the time-bar.     See PCRA Ct. Op. at 6.      The Feliciano Court

considered this precise issue as follows:

         “The right to effective assistance of counsel during the plea
         bargaining process has been recognized for decades.”
         Commonwealth v. Lewis, 63 A.3d 1274, 1280 (Pa.
         Super. 2013) (citing Hill v. Lockhart, [ ] 106 S. Ct. 366, [
         ] (1985) (holding that “the two-part Strickland [v.
         Washington], [ ] 104 S. Ct. 2052 [ ][(1984)], test applies
         to challenges to guilty pleas based on the ineffective
         assistance of counsel”); Padilla v. Kentucky, [ ] 130 S.
         Ct. 1473 [ ] (2010) (“Before deciding whether to plead
         guilty, a defendant is entitled to the effective assistance of
         competent counsel.”)). In Frye, the United State Supreme
         Court merely clarified that this well-established right
         “extends to the negotiation and consideration of plea
         offers that lapse or are rejected.” Frye, 132 S. Ct. at
         1404 (emphasis added). In other words, the Frye Court
         held “that, as a general rule, defense counsel has the duty
         to communicate formal offers from the prosecution to
         accept a plea on terms and conditions that may be
         favorable to the accused.” Id. at 1408. In determining
         whether counsel has satisfied this obligation, the two-part
         test set forth in Strickland applies. See id. at 1409. In
         Lafler, the Court explained that to meet the prejudice
         prong of the Strickland test where the alleged



                                     -4-
J.S23032/16


        ineffectiveness of counsel involves the defendant’s
        rejection of a plea offer, the defendant must show,

            that but for the ineffective advice of counsel there is
            a reasonable probability that the plea offer would
            have been presented to the court (i.e., that the
            defendant would have accepted the plea and the
            prosecution would not have withdrawn it in light of
            intervening circumstances), that the court would
            have accepted its terms, and that the conviction or
            sentence, or both, under the offer's terms would
            have been less severe than under the judgment and
            sentence that in fact were imposed.

        Lafler, 132 S. Ct. at 1385.

            It is apparent that neither Frye nor Lafler created
        a new constitutional right. Instead, these decisions
        simply applied the Sixth Amendment right to counsel, and
        the     Strickland   test   for  demonstrating      counsel’s
        ineffectiveness, to the particular circumstances at hand,
        i.e. where counsel’s conduct resulted in a plea offer lapsing
        or being rejected to the defendant’s detriment.

Feliciano, 69 A.3d at 1276-77 (some emphasis added and footnotes

omitted).

     As neither Lafler nor Frye created a new constitutional right,

Appellant’s argument that those decisions provided a time-bar exception

under Section 9545(b)(1)(iii) is meritless.   See id. at 1277. We find that

this issue has been settled by our decision in Feliciano, and thus detect no

basis upon which to conclude that the PCRA court erred in dismissing the

instant petition as untimely.     Thus, we affirm the PCRA court’s order

dismissing the PCRA petition as untimely.

     Order affirmed.



                                      -5-
J.S23032/16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2016




                          -6-
                                                                                                Circulated
                                                                                                Circulated 02/23/2016
                                                                                                           02/23/2016 04:54 PM
                                                                                                                            PM




                          IN THE COURT Or COMMON PLEAS
                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                              CRIMINAL TRIAL DIVISION


 COMMONWEALTH                                                                         CP-51-CR-141-819-27775


                                             v
                                                                      FILE
                                   opinion       Norris. Bruce
        VS.                                                            AUG   282015
                                                                    Criminal Appeals Unit
                   III/IihIIiiiiiiiiijj
                        73 3                                     first Judicial District of PA
                               8z8z7s1                                                    SUPERIOR COURT
 BRUCE NORRIS                                                                         2512 EDA 2014



 BRINKLEY, J.                                                                         AUGUST 28, 2015

                                                          OPINION

        Defendant Bruce Norris filed a petition for relief pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A.       §   9541 et seq. (eff. Jan. 16, 1996), raising a claim of ineffective

assistance of counsel based upon the retroactive application of a constitutional right. After

independent review of Defendant's pro se PCRA petition and PCRA counsel's Finley letter, this

Court dismissed Defendant's petition without a hearing based upon Counsel's Finley letter and

untimeliness. Defendant appealed the dismissal of his petition to the Superior Court. The sole

issue addressed in this Opinion is whether this Court properly dismissed Defendant's petition

based upon Counsel's Finley letter and untimeliness. This Court's decision should be affirmed.

                          PROCEDURAL HISTORY AND FACTS

       On June 30, 1975, Defendant was arrested and charged with murder and related offenses.

On October 31, 1975, following a jury trial, Defendant was found guilty of second -degree

murder, robbery, criminal conspiracy, possessing instruments of crime (PIC), and possessing

prohibited weapons. On January 19, 1976, the Honorable Alex Bonavitacola sentenced
                                                                  1
 Defendant to life imprisonment on the murder charge,         5   to 10 years state incarceration on the

 robbery charge, and   5 to 10   years state incarceration on the conspiracy charge. The sentences on

 all charges were to run consecutively to one another. In addition, Judge Bonavitacola further

 sentenced Defendant to 2V to      5   years state incarceration on "the remaining count ", to run

 concurrently with the sentences on the other charges, although he did not specify which of

 Defendant's two remaining charges this sentence applied to.

        On November 6, 1975, Defendant filed a motion for a new trial. On February 17, 1976,

 Defendant filed an appeal with the Supreme Court of Pennsylvania. On December               1,   1977, the

 Supreme Court affirmed the judgment of sentence. On June 2, 1978, Defendant filed a petition

 for relief pursuant to the Post -Conviction Hearing Act (PCHA), alleging ineffective assistance of

counsel based upon trial counsel's failure to obtain the statement of Defendant's co- defendant, to

object to the Commonwealth Attorney's improper argument, to cross -examine the co- defendant

as to bias and credibility, to cross -examine a witness based upon their inability to identify

Defendant at a previous lineup, and to raise these issues on appeal. On September 23, 1981, the

PCHA Court found Defendant's petition to be without merit. Defendant appealed the dismissal

of his petition to the Superior Court and, on October I, 1982, the Superior Court affirmed the

dismissal of Defendant's petition.

        On April 18, 2012, Defendant filed the instant petition for relief pursuant to the Post -

Conviction Relief Act (PCRA), alleging ineffective assistance of counsel based upon trial

counsel's advising him to reject the Commonwealth's plea offer of 25 years state incarceration

without first advising Defendant of the advantages and disadvantages of accepting the offer. On

April 9, 2014, Barnaby Wittels, Esquire, was appointed as PCRA counsel. On February 25,

2015, Mr. Wittels filed a Finley letter stating that the issues raised in Defendant's petition were



                                                     2
 untimely, waived, and without merit. On June 12, 2015, this Court' sent Defendant a notice

 pursuant to Rule 907, indicating that his petition would be dismissed based upon Counsel's

 Finley letter and untimeliness. Defendant did not file a response to the 907 notice. On July 15,

 2015, after independent review of Defendant's pro se petition and Counsel's Finley letter, this

 Court dismissed Defendant's petition without a hearing based upon Counsel's Finley letter and

 untimeliness. On August 13, 2015, Defendant appealed the dismissal of his petition to the

 Superior Court.

                                                    ISSUE

         I.       WHETHER THIS COURT PROPERLY DISMISSED DEFENDANT'S
                  PETITION BASED UPON COUNSEL'S FINLEY LETTER AND
                  UNTIMELINESS.

                                               DISCUSSION

         I.      THIS COURT PROPERLY DISMISSED DEFENDANT'S PETITION
                 BASED UPON COUNSEL'S FINLEY LETTER AND UNTIMELINESS.

         This Court properly dismissed Defendant's petition based upon Counsel's Finley letter

and untimeliness. When reviewing the denial of PCRA relief, the appellate court's review is

limited to determining whether the PCRA court's findings are supported by the record and

without legal error. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 345 (2013) (citing

Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). The court's scope of

review is limited to the findings of the PCRA court and the evidence on the record of the PCRA

court's hearing, viewed in light most favorable to the prevailing party. Commonwealth   v. Fahy,

598 Pa. 584, 959 A.2d 312, 316 (2008) (citing Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d

56, 61 (2005)). The burden is on the petitioner in the PCRA petition to demonstrate by a

preponderance of the evidence that he or she is eligible for PCRA relief 42 Pa.C.S.A § 9543.


 On March 13, 2015, Defendant's PCRA petition was reassigned to this Court.

                                                      3
         It is well -settled in   Pennsylvania that all petitions under the PCRA, including subsequent

 petitions, must be filed within one year of the date the judgment becomes final, unless the

 petition alleges, and the petitioner proves, an exception to the one -year time period.

 Commonwealth v. Albrecht, 606 Pa. 64, 994 A.2d 1091, 1094 (2010) (citing Commonwealth                 v.

 Hawkins, 598 Pa. 85, 953 A.2d 1248, 1252 (2008)). The exceptions apply where the petition

 successfully alleges and proves one or more of the following:


         (i)         the failure to raise this claim previously was the result of interference by
                    government officials with presentation of the claim in violation of the
                    Constitution of 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.

 42 Pa.C.S.A    §   9545(b)(1)(i)- (iii). A petition invoking one of these exceptions must be filed

 within 60 days of the date the claim could first have been presented. 42 Pa. C.S.A.      §   9545(b)(2).

The petitioner must plead and prove specific facts that demonstrate his claim was raised within

the 60 day time frame. Commonwealth v. Hernandez, 79 A.3d 649, 651 -52 (2013).

        The PCRA's timeliness requirements are jurisdictional in nature. Commonwealth v.

Johnston, 2012 PA Super 67, 42 A.3d 1120, 1130 (2012) (citing Commonwealth v. Abu -Jamal,

596 Pa. 219, 941 A.2d 1263, 1267 -68 (2008)). The time "limitations are mandatory and are

interpreted literally; thus, a court has no authority to extend filing periods except as statute

permits." Commonwealth v. Seskey, 2014 PA Super 27, 86 A.3d 237, 242 (2014) (quoting

Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999)). "If the petition is determined

to be untimely, and no exception has been pled and proven, the petition must be dismissed

without hearing because Pennsylvania courts are without jurisdiction to consider the merits of

                                                     4
 the petition." Id. (quoting Commonwealth v. Jackson, 30 A.3d 516, 518 -19 (Pa. Super. 2011);

 Commonwealth v. Perrin, 947 A.2d 1284, 1285 (2008)).

             Counsel should be strongly presumed to have rendered adequate assistance and made all

 significant decisions in the exercise of reasonable professional judgment, and the burden to show

 that counsel's performance was deficient rests squarely on the defendant. Commonwealth v.

 Reyes- Rodriguez, 2015 PA Super 47, 111 A.3d 775, 780 (2015) (quoting Burt v. Titlow, - -- U.S.

 - - -,   134 S.Ct. 10, 17 (2013)). To establish trial 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. Freeland, 2014 PA Super 274, 106 A.3d 768, 775 (2014) (citing

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). A PCRA petitioner will be

granted relief only when he proves, by a preponderance of the evidence, that his conviction or

sentence resulted from the 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. Id. (citing 42 Pa.C.S.        §   9543(a)(2)(ii)). Counsel's assistance

is deemed      constitutionally effective once the court determines that the defendant has not

established any one of the prongs of the ineffectiveness test. Id. (citing Commonwealth           v.   Rolan,

964 A.2d 398, 406 (Pa.Super.2008)). To establish prejudice, the defendant must show that there

is a reasonable     probability that the outcome of the proceedings would have been different but for

counsel's action or inaction. Commonwealth         v.   Davido, 106 A.3d 611, 621 (Pa. 2014) (citing

Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)).

            The decision whether to plead guilty or contest a criminal charge is probably the most

important single decision in any criminal case. Commonwealth v. Chazin, 2005 PA Super 143,



                                                        5
 873 A.2d 732, 735 (2005) (citing Commonwealth v. Copeland, 381 Pa.Super. 382, 554 A.2d 54,

 60 (1988)). This decision must finally be left to the client's wishes; counsel cannot plead a man

 guilty, or not guilty, against his will. Id. But counsel may and must give the client the benefit of

 his professional advice on this crucial decision, and often he can protect the client adequately

 only by using a considerable amount of persuasion to convince the client that one course or the

 other is in the client's best interest. Id. In order to be entitled to relief, defendant will have the

 burden of proving that: (1) an offer for a plea was made; (2) trial counsel failed to inform him of

 such offer; (3) trial counsel had no reasonable basis for failing to inform him of the plea offer;

 and (4) he was prejudiced thereby. Id.

        In the case at bar, Defendant's judgment became final on March 1, 1978, when his time

to file a petition for a writ   of certiorari with the United States Supreme Court expired.

Consequently, Defendant had until March         1,      1979 to file a timely petition pursuant to the PCRA.

Defendant filed the instant petition on April 18, 2012, more than 33 years after the deadline to

file a timely petition had passed. To escape the time -bar, Defendant alleged the retroactive

application of a constitutional right exception based upon the United States Supreme Court's

holdings in Lafler v. Cooper and Missouri       v.   Frye, both decided on March 21, 2012, in which the

Court held that counsel may be ineffective by failing to explain the advantages and

disadvantages of accepting an offered plea deal. See Lafler v. Cooper,           - --   U.S.   - - -,   132 S.Ct. 1376

(2012); see also Missouri v. Frye, - -- U.S.   - - -,   132 S.Ct. 1399 (2012).

       However, Defendant's reliance on Lafler and Frye to avoid the time -bar is misplaced.

Contrary to Defendant's claims, neither case announced a new constitutional right in

Pennsylvania which would allow Defendant to avoid the time -bar. To the contrary, Defendant's

own memorandum of law in support of his pro se petition cites to a 1978 Superior Court case,



                                                         6
 Commonwealth v. Napper, in which that Court held that counsel had a duty not only to

 communicate the terms of an offer to his or her client but to also discuss the relative merits of the

 offer compared to the defendant's chances at trial. See Commonwealth v. Napper, 254 Pa.Super.

 54, 385 A.2d 521,524 (1978). Furthermore, on January 23, 1997, the Supreme Court of

 Pennsylvania held, in Commonwealth v. Boyd, that the failure of trial counsel to explain the

 advantages and disadvantages of a plea offer prior to advising the defendant to decline the offer

 was cognizable as ineffective assistance of counsel under §9543(a)(2)(v) of the PCRA. See

 Commonwealth v. Boyd, 547 Pa. 111, 688 A.2d 1172, 1174 -75 (1997). Moreover, in

 Commonwealth ex rel. Dadario v. Goldberg, the Supreme Court held, on June 19, 2001, that

 claims of ineffective assistance of counsel during the plea bargaining stage were cognizable

 under §9543(a)(2)(ii) of the PCRA, following the repeal of §9543(a)(2)(v). See Commonwealth

 ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126, 131 (2001). While Defendant should

have filed his petition in 1978 or 1997, even under the most generous standard, Defendant had

until August 18, 2001, 60 days from the Supreme Court's decision in Commonwealth ex rel.

Dadario v. Goldberg, to file a timely PCRA petition alleging ineffective assistance o_'counsel

during the plea bargaining process. As Defendant did not file the instant petition until April 18,

2012, it is consequently untimely.

       Even if Lafler and Frye did provide a means for Defendant to avoid the time -bar, his

petition is still without merit and waived. Defendant has failed to offer any evidence that the

Commonwealth offered him the claimed plea deal of 25 years state incarceration or that trial

counsel failed to discuss the advantages and disadvantages of the offer prior to advising

Defendant to decline the offer. To the contrary, the strength of the Commonwealth's case against

Defendant, including multiple witnesses who saw Defendant shoot the decedent and Defendant's



                                                 7
 own statement to the police in which he admitted to shooting the decedent, makes     it   unlikely that

 the Commonwealth would have offered him a plea deal of 25 years incarceration when he was

 facing a sentence of life imprisonment. Moreover, Defendant attached an affidavit tc his pro se

petition that he was aware that an offer had been made, was counseled to reject it, and was never

told that he could receive a harsher sentence. However, once he received a life sentence, he was

fully aware that this was greater than a 25 -year sentence and could have raised this issue on

direct appeal. However, he failed to do so, thereby waiving this claim of ineffectiveness.

Furthermore, Defendant waited more than three decades to raise these claims, long after the 1999

death of his trial counsel, Stanley Stern, Esquire, the retirement of his first PCHA attorney,

Henry Wessel, and removal from the bar of his second PCHA attorney. Those events

notwithstanding, no benefit accrues to this defendant by such delay, as defendant himself gave an

inculpatory statement, actually admitting to being the shooter, and did so in the presence of

numerous witnesses, negating the likelihood that any such offer would have been made by the

Commonwealth in the first place. Thus, even if Defendant's petition was timely, his claims

therein are nevertheless without merit and no relief is due. Accordingly, this Court properly

dismissed Defendant's petition based upon PCRA counsel's Finley letter and untimeliness.




                                                8
                                         CONCLUSION

       After review of the applicable case law, testimony and statutes, this Court committed no

error. Defendant's PCRA petition was properly dismissed based upon PCRA counsel's Finley

letter and untimeliness. Accordingly, this Court's decision should be affirmed.




                                               9
