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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



____________________________________________


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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