Com. v. Norris, L. ( 2022 )

J-S14043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALVIN NORRIS :
:
Appellant : No. 1178 WDA 2021
Appeal from the PCRA Order Entered August 30, 2021
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001475-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALVIN NORRIS :
:
Appellant : No. 1179 WDA 2021
Appeal from the PCRA Order Entered August 30, 2021
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001476-2016
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JULY 13, 2022
Calvin Norris (Norris) appeals two related orders of the Court of
Common Pleas of Mercer County (PCRA court) denying his petitions for post-
conviction relief. In 2016, Norris was implicated in the non-fatal shooting of
Kimberly Odem and the fatal shooting of Percey Godfrey which occurred
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* Retired Senior Judge assigned to the Superior Court.
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moments later the same night. Norris admitted that he shot those two
individuals, but he claimed that he did so in self-defense.
Following a jury trial, Norris was found guilty of first-degree murder and
aggravated assault. He was sentenced to a prison term of life as to the murder
count and a consecutive term of 102 to 240 months as to the assault count.
In Norris’ post-conviction petition,1 he argued that his trial counsel was
ineffective in allowing the jury to consider the fact that the firearm he used
was stolen as evidence of culpability. He also contended that counsel was
ineffective in failing to advance theories of “imperfect” self-defense/voluntary
manslaughter on his behalf. The PCRA court denied the petition in its entirety
and we now affirm.
This Court has previously summarized the facts of the underlying case
as follows:
[Norris’] convictions arose from two shootings that occurred
around 11:30 p.m. on August 14, 2016. Victim Kimberly Odem
testified that she bought crack cocaine from [Norris] earlier on the
day of the crimes. The crack turned out to be fake, and Odem
and her boyfriend, deceased victim Percy Godfrey, had an
altercation with [Norris] on the same evening, a few hours prior
to the shootings. Surveillance video from 10:30 [p.m.] on the
evening of the shootings depicted [Norris] entering a convenience
store appearing as though he had been in an altercation.
Just before she was shot on the northeast corner of New Castle
Street in Sharon, Pennsylvania, Odem heard someone call her
name. She turned to look, and [Norris] opened fire, hitting Odem
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1The petition was filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.
§§ 9541-9546 (PCRA).
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in the jaw, left hand, and shoulder. Police recovered three nine-
millimeter casings near the site of the Odem shooting. Odem had
known [Norris] for approximately ten years, and she consistently
identified him as the shooter. Odem was hospitalized for two
months and, as of the time of trial, needed several additional
surgeries.
No eyewitness observed the fatal altercation between [Norris] and
Godfrey, but it took place very shortly after the shooting of Odem.
Neighbors reported hearing two or three shots, a pause, and then
an additional series of shots fired. Police found Godfrey's corpse
roughly 150 feet from the site of the Odem shooting. Godfrey
suffered bullet wounds in the leg and in the abdomen. Both
bullets entered Godfrey’s body from behind. The fatal shot
entered Godfrey’s left mid-back and exited the right front of his
lower chest. The bullets were not fired from point blank range.
Police recovered eight spent nine-millimeter casings
approximately 62 feet from Godfrey’s body. [Norris]
suffered a stab wound in the abdomen, and police found a
knife in Godfrey’s hand with [Norris’] blood on it. The
convenience store surveillance footage from earlier in the
evening did not depict [Norris] bleeding from the abdomen.
Shortly after the shootings, [Norris] knocked on the door of his
aunt, Regina Norris, who lived very near the crime scene. There,
he asked his cousin, Alvin Hancock, Jr., to drive him to a hospital
in Youngstown, Ohio, rather than Sharon Regional Hospital.
[Norris] claimed he had been stabbed after having oral sex with
another man’s girlfriend. [Norris] and Hancock arrived at St.
Elizabeth Hospital in Youngstown shortly after midnight on August
15, 2016. Surveillance video depicted [Norris] walking across a
parking lot from Hancock’s car to the hospital entrance with no
obvious impairment.
Corporal Randolph Guy of the Pennsylvania State Police
interviewed [Norris] in the hospital at 7:20 a.m. on the morning
of August 15, 2016 after having interviewed family members of
the shooting victims. Corporal Guy wore plain clothes and did not
give [Norris] Miranda warnings. The interview lasted five to ten
minutes. [Norris] claimed he was stabbed a few blocks from the
hospital.
Police retrieved a nine-millimeter Luger handgun from underneath
some other items on Norris’ front porch. DNA testing revealed
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that [Norris’] DNA was on the gun. Crime lab analysis established
that the 11 nine-millimeter casings recovered from the scenes of
the Odem and Godfrey shootings were fired from the Luger
handgun.
Commonwealth v. Norris, No. 1604 WDA 2017 (Pa. Super. December 11,
2018) (unpublished memorandum) (emphasis added, footnotes omitted).
Along with the above-mentioned counts of murder and aggravated
assault, the Commonwealth had also initially charged Norris with receiving
stolen property2 based on the prior reported theft of the firearm used in the
shooting. At the close of the Commonwealth’s case, the trial court granted a
demurrer as to that count. However, by then, the jury had already heard
evidence that the firearm was stolen. The jury was then advised at multiple
stages by the trial court and the Commonwealth that it could consider that
fact when determining if Norris acted in self-defense. See Trial Transcript,
7/17/2017, at pp. 32-33; Trial Transcript, 7/18/2017, at p. 62.
After Norris was found guilty, he appealed and the judgment of sentence
was upheld. Norris then filed the PCRA petition before us in which he claimed
in relevant part that trial counsel was ineffective in not seeking to exclude all
evidence that the firearm he had used was stolen and then permitting the
evidence to be used to establish his culpability in the shootings. Moreover,
Norris argued that counsel erred in only presenting to the jury a claim of
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2 See 18 Pa.C.S. § 3925(a) (receiving stolen property).
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complete self-defense, excluding alternative theories of voluntary
manslaughter, a lesser offense of murder.3 The PCRA court held an
evidentiary hearing and Norris’ trial counsel testified. See PCRA Hearing
Transcript, 5/24/2021, at pp. 14-40.
The PCRA court denied relief and Norris timely appealed the order
denying his PCRA petition.4 In his appellate brief, he raises four issues for our
consideration:
1. Whether the trial court erred in ruling that trial counsel was not
ineffective for failing to file a pre-trial Habeas Corpus dealing with
the receiving stolen property lodged against [Norris.]
2. Whether the PCRA court erred in ruling that trial counsel was
not ineffective for failing to object to the Commonwealth’s closing
argument pertaining to the receiving stolen property and stolen
gun[.]
3. Whether the PCRA Court erred in ruling that trial counsel was
not ineffective for failing to object to the trial court’s jury
instructions in which the Court informed the jury that even though
the receiving stolen property charge had been dismissed, the jury
could still consider any evidence tending to show that the gun was
proven to be stolen[.]
4. Whether the PCRA Court erred in ruling that trial counsel was
not ineffective in failing to argue in her closing argument
“imperfect self-defense” and involuntary manslaughter[.]
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3 The jury received a written instruction on voluntary manslaughter, and the
instruction was given over Norris’ personal objection. His present PCRA claim
is that trial counsel was ineffective in not presenting this theory to the jury
during closings.
4 The PCRA court entered a 1925(a) opinion on August 30, 2021.
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Appellant’s Brief, at 4.
I.
The four issues before us all involve claims of ineffective assistance of
trial counsel. Counsel is presumed to be effective, and a petitioner for PCRA
relief bears the burden of proving each element of ineffectiveness by a
preponderance of the evidence. See Commonwealth v. Postie, 200 A.3d
1015, 1023 (Pa. Super. 2018). The three elements of an ineffectiveness claim
are (1) that the underlying claim of error has arguable merit; (2) that counsel
had no reasonable basis for the disputed aspect of her performance; and (3)
that as a result of counsel’s deficient performance, the petitioner suffered
prejudice. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987);
see also Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (same).
In the context of a PCRA claim, “prejudice” means that, “absent counsel’s
conduct, there is a reasonable probability [that] the outcome of the
proceedings would have been different.” Commonwealth v. Velasquez,
216 A.3d 1146, 1149 (Pa. Super. 2019) (citation omitted).
Failing to satisfy any of these prongs is fatal to an ineffectiveness claim.
Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012). Additionally,
counsel cannot be deemed ineffective for failing to raise claims that are
meritless. See Spotz, 896 A.2d at 1210.
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A.
Norris’ first claim is that trial counsel was ineffective in not seeking to
have the charge of possession of stolen property dismissed prior to trial. He
argues that even though the charge was later dismissed at the close of the
evidence, it was still prejudicial for the jury to know the firearm was stolen
when considering the remaining counts. We find no merit in this claim.
The offense of receiving stolen property requires proof that the
defendant “(1) intentionally acquir[ed] possession of the movable property of
another; (2) with knowledge or belief that it was probably stolen; and (3) the
intent to deprive permanently.” Commonwealth v. Robinson, 128 A.3d
261, 264 (Pa. Super. 2015); see also 18 Pa.C.S. § 3925(a). The knowledge
element of the crime may be proven circumstantially. See Commonwealth
v. Gomez, 224 A.3d 1095 (Pa. Super. 2019). The fact-finder may infer such
knowledge if evidence is offered showing that the property was recently
stolen. See id.“A pre-trial habeas corpus motion is the proper means for testing
whether the Commonwealth has sufficient evidence to establish a prima facie
case.” Commonwealth v. Carroll, 936 A.2d 1148, 1152 (Pa. Super. 2007)
(abrogation on other grounds recognized in Commonwealth v. Dantzler,
135 A.3d 1109, 1112 n.5 (Pa. Super. 2016)). A prima facie case is a fairly
low evidentiary bar that is akin to the probable cause standard. See
generally Commonwealth v. Talley, 265 A.3d 485, 517-18 (Pa. 2021); see
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also id. at 517 (citing Commonwealth v. Ricker, 170 A.3d 494, 503 (Pa.
2017) (per curiam) (Saylor, C.J., concurring) (“[T]he sole function of the jurist
presiding at a preliminary hearing is to determine whether probable cause
exists to require an accused to stand trial on the charges contained in the
complaint.”)).
A prima facie case exists if the Commonwealth can “produce evidence
of every material element of the charged offense(s) as well as the defendant’s
complicity therein.” Carroll, 936 A.2d at 1152. The Commonwealth may
meet its burden by relying on “the evidence presented at the preliminary
hearing,” and “a court must view the evidence and its reasonable inferences
in the light most favorable to the Commonwealth.” Id.At Norris’ preliminary hearing on September 2, 2016, there clearly was
prima facia evidence that Norris committed the offense of receiving stolen
property. A police officer testified that the weapon used in the subject
shootings was recovered at the home of Norris’ aunt (Regina Norris) within
hours of the incident. See Transcript of Preliminary Hearing, 9/2/2016, at p.
17. The weapon had been reported as stolen on June 27, 2016, and the
named victim was Devin Braden, who had no other connection with this case.
Id. at pp. 26-27. Norris had been identified as the shooter by the surviving
victim, Kimberly Odem. Id. at p. 8. Regina Norris testified that Norris had
arrived at her home at about 3:35 a.m. hours after the shooting, urging her
to take him to the hospital for treatment of a stab wound; she had no
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knowledge of the firearm discovered by police at her residence later that night.
Id. at pp. 22-23.
There is no legal merit to Norris’ underlying claim because a pretrial
habeas corpus motion to quash the charge would have certainly been denied.
Viewing the evidence in the light favorable to the Commonwealth, all of the
elements of possession of stolen property could be met. Since the chance of
the trial court granting such a motion at that stage was nil, trial counsel had
a reasonable basis for not filing one, and counsel cannot be found ineffective
by declining to make a frivolous filing. Regardless, counsel’s inaction could
not have prejudiced Norris because he was ultimately not found guilty of that
count.5
B.
1.
Norris’ second and third claims may be condensed into the single issue
of whether trial counsel was ineffective in allowing the jury to be advised that
it could consider evidence of the weapon being stolen when deliberating on
the murder and aggravated assault counts. Although Norris is correct that
this evidence should have been excluded for lack of relevance and the danger
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5 The asserted prejudice Norris alludes to in this first claim overlaps with
grounds contained elsewhere in his brief – those in which he argues that the
jury should not have been directed to consider evidence of the stolen firearm
when entering its verdict on the murder and aggravated assault counts. These
separate issues are addressed in turn below.
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of undue prejudice, we find that ultimately the error was not prejudicial for
PCRA purposes in light of other, properly admitted evidence that Norris was
in no imminent danger of physical harm at the time he shot the victims.
At trial, it was undisputed that Norris received a knife wound to his
abdomen on the evening of but sometime prior to the shooting of the two
victims and that the firearm he used was stolen property. The
Commonwealth, in its closing argument, ended the summary of the evidence
and preceded its discussion of self-defense by emphasizing that the weapon
was stolen:
And lastly, before we go into the defense’s defense which
we touched upon briefly, let’s talk about the stolen gun.
No, we weren’t able to show that he knew or should have known
that the gun was stolen, so that is not going to be in front of you.
I told you there would be receiving stolen property. It was
determined there was not enough [evidence] for that, but we do
know the gun was stolen. We heard testimony about that.
This is America. We have a right to carry a gun. We have a right
to have guns to protect ourselves, and we all deserve that right,
but we buy those guns legally. We buy those guns from the stores
that are to sell them or any appropriate measures. We don’t buy
stolen guns. You know what stolen guns are used for?
Committing crimes, drug dealing, robbing, murder; that is
the purpose of a stolen gun. It is not for self protection. It
is to commit a crime. To go hunting on the streets.
Trial Transcript, 7/17/2017, at pp. 32-33. Then again, in its rebuttal opening,
the Commonwealth repeated those same themes: “Leaves the state, running,
lying, hiding, guilty conscience. DNA, [gunshot residue], stolen gun, matching
casings.” Trial Transcript, 7/18/2017, at p. 21.
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The next day, the trial court reaffirmed to the jury that it would be
permitted to consider Norris’ use of a stolen firearm. However, the trial court
offered little clarification as to the purposes for which that evidence could be
considered:
I would like to tell you at the beginning though, that the receiving
stolen property charge that was on each case as to the gun has
been removed by the Court. The reason for that is that the Court
found that there was not enough evidence to give that charge to
you on one element, and that is whether or not [Norris] knew, or
had reason to know, the gun was stolen. So those charges are off
the table now. So it won’t be on the verdict slip. That does not
mean that you can’t consider or should not consider any
evidence tending to show that the gun was proven to be
stolen.
Trial Transcript, 7/18/2017, at p. 62 (emphasis added). Trial counsel did not
make any objections to any of the above references to the stolen weapon.
Despite the instructions given to the jury by the prosecution and the
trial court, whether or not Norris was using a stolen firearm at the time of the
shootings had no logical bearing on whether his use of force was justified. The
legality of weapon possession is not an element of first-degree murder or
aggravated assault. It could not even be proven whether Norris’ possession
of the firearm was illegal.
The Commonwealth simply used the fact that the gun was stolen as
evidence that Norris had a bad character or a propensity to commit criminal
acts. Using evidence in this manner is prohibited, see Pa.R.E. 404(b)(1),
because “the presumed effect of such evidence is to predispose the minds of
the juror to believe the accused guilty, and thus effectually strip him of the
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presumption of innocence[.]” Commonwealth v. Spruill, 391 A.2d 1048,
1049-50 (Pa. 1978) (quotations and citations omitted). Because of the
inherent risk of this undue prejudice, evidence of bad character and prior bad
acts is generally excludable unless a limited exception is established by the
proponent. See generally Pa.R.E. 404.6
2.
The Commonwealth nevertheless proposes in its brief that the firearm
being stolen was relevant because it would “dispel the possibility of another
shooter” and exclude “the registered owner as a suspect given the stolen
nature of the gun.” Appellee’s Brief, at 15-16. The Commonwealth suggests
further that the evidence of the firearm being stolen was relevant to prove
that Norris had no right to stand his ground and use deadly force, even if done
in self-defense. See 18 Pa.C.S. § 505(2.3) (providing that an actor may stand
his ground and use force in self-defense if he is not “engaged in criminal
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6 The limited exceptions to the prohibition on propensity evidence are that it
may be offered for the limited purposes of proving “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Pa.R.E. 404(b)(2). The Commonwealth did not even purport to
use the disputed evidence in this case for any of those permissible purposes.
Had the Commonwealth sought to use the evidence for one of the enumerated
exceptions, it would have had to comport with the notice provisions of Rule
404, which it did not do here. Another predicate for the admission of
propensity evidence is that its probative value must outweigh its prejudicial
effect, see Pa.R.E. 404(b)(3), and no such showing was made in this case.
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activity, . . . not in illegal possession of a firearm and [not] attacked in any
place where [he] would have a duty to retreat[.]”).
The Commonwealth’s arguments in this regard are nonsensical. First,
Norris admitted that he was the shooter, and his defense was that the use of
deadly force was justified by the initial aggression of Odem and Godfrey.
Evidence is only relevant if “(a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” See Pa.R.E. 401. Norris’ admission
and his asserted defense prevented the identity of the shooter from being a
fact of consequence, so any evidence ruling out other individuals as the
perpetrator would obviously be irrelevant and inadmissible upon timely
objection. See Pa.R.E. 401.
3.
Second, the gun being stolen was not probative as to Norris’ self-
defense claim as the Commonwealth contends. A defendant may be absolved
of criminal liability for death or injury arising from the defendant’s use of force
if:
1) the defendant reasonably believed that he was in imminent
danger of death or serious bodily injury and that it was necessary
to use deadly [force] to prevent such harm; 2) the defendant did
not provoke the threat that resulted in the slaying; and 3) the
defendant did not violate a duty to retreat. 18 Pa.C.S.
§ 505(b)(2)[.]
Commonwealth v. Jones, 271 A.3d 452, 458-59 (Pa. Super. 2021) (some
citations omitted). “Where the defendant has introduced evidence of self-
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defense, the burden is on the Commonwealth to disprove the self-defense
claim beyond a reasonable doubt by proving that at least one of those three
elements is absent.” Id.The statute now referred to by the Commonwealth, 18 Pa.C.S.
§ 505(2.3), codifies the “stand your ground” law. Under this provision, a
defendant may be held criminally liable for a homicide offense if the
Commonwealth can prove that the defendant had a duty to retreat. See id.
A duty to retreat under this statute may be established by several means,
including, but not limited to, the defendant’s illegal possession of a firearm:
An actor who is not engaged in a criminal activity, who is not in
illegal possession of a firearm and who is attacked in any place
where the actor would have a duty to retreat under paragraph
(2)(ii) has no duty to retreat and has the right to stand his ground
and use force, including deadly force, if:
(i) the actor has a right to be in the place where he was
attacked;
(ii) the actor believes it is immediately necessary to do so
to protect himself against death, serious bodily injury, kidnapping
or sexual intercourse by force or threat; and
(iii) the person against whom the force is used displays or
otherwise uses:
(A) a firearm or replica of a firearm as defined in 42
Pa.C.S. § 9712 (relating to sentences for offenses
committed with firearms); or
(B) any other weapon readily or apparently capable of
lethal use.
18 Pa.C.S. § 505(2.3).
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In the present case, prior to jury deliberations, the trial court dismissed
the count of receiving stolen property because it found, as a matter of law,
that the elements of the offense could not be proven beyond a reasonable
doubt. Merely possessing a stolen firearm is not in itself a criminal act absent
additional elements, such as guilty knowledge or mens rea. At trial, no other
offenses were proven establishing the illegality of Norris’ weapon possession,
and the Commonwealth does not assert in this appeal that the evidence would
have been sufficient to do so. The Commonwealth identifies no evidence or
even a cogent hypothesis to support its claim that stolen firearms are less
frequently used in self-defense than firearms which are not stolen.
It is also significant that during its closing argument, the Commonwealth
did not refer at all to the firearm being stolen as a ground on which the jury
could find that Norris had a duty to retreat. Rather, as to the duty to retreat,
the Commonwealth only argued that Norris had no right to seek out the
victims after he was stabbed: “Once that happens and the threat to [Norris]
has been removed, that meets element three, which is failure to retreat or
avoid[.]” Trial Transcript, 7/18/2017, at p. 36. The jury was never even
instructed on the “stand your ground law” or how evidence of a stolen firearm
could be probative in that context. See 18 Pa.C.S. § 505(2.3).
Instead, the Commonwealth made a pure propensity argument by
telling the jury it could correlate possession of a stolen firearm with intent to
commit violent crimes:
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You know what stolen guns are used for? Committing crimes,
drug dealing, robbing, murder; that is the purpose of a stolen gun.
It is not for self protection. It is to commit a crime. To go hunting
on the streets.
Trial Transcript, 7/17/2017, at pp. 32-33.
Accordingly, the Commonwealth did not rely on the firearm being stolen
for the reasons it now claims made the evidence relevant at trial. The record
reflects, rather, that the jury was encouraged to infer Norris’ bad character
and a propensity for violence based on his mere possession of a stolen firearm,
despite that his possession was not proven to be illegal. The jury was then
asked to infer further that since Norris was carrying a stolen weapon, that he
could not have been acting in self-defense when the weapon was discharged.
Propensity arguments like this one are prohibited because of the danger that
the jury may rely on it to convict a defendant for having a bad character, but
without making a determination that the charges were proven beyond a
reasonable doubt. See Commonwealth v. Newman, 598 A.2d 275, 278
(Pa. 1991); see also Pa.R.E. 404(a)-(b).
Trial counsel, therefore, erred in failing to object to prosecutorial
comments advising the jury that it could consider the fact that the firearm
was stolen; trial counsel likewise erred in failing to object to the trial court’s
vague instruction to the jury that this evidence could be considered for some
unstated purpose. The arguments and instructions given with respect to this
evidence were objectionable, and counsel had no reasonable basis in allowing
the possibility that the jury would consider irrelevant evidence of the
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commission of a prior bad act when determining if Norris discharged the
weapon in self-defense.7
Having discussed the underlying legal error and reasonable basis prongs
of Norris’ ineffectiveness claim, we must now evaluate whether Norris was
prejudiced by counsel’s deficient performance. The test for prejudice in the
context of a PCRA claim is whether there was a “reasonable probability” that
Norris would have been found guilty of first-degree murder and aggravated
assault had the jury been advised to disregard the fact that Norris possessed
a stolen weapon. See Commonwealth v. Hickman, 799 A.2d 136 (Pa.
Super. 2002). The “‘reasonable probability’ test is not a stringent one.” Id.It is even “less demanding than [the] preponderance standard.” Id. (citing
Nix v. Whiteside, 475 U.S. 157, 175 (1986)).
A propensity argument involving irrelevant evidence of a stolen firearm
may potentially constitute a violation of the accused’s constitutional right to
due process and a fair trial, but these improper arguments may be deemed
harmless where there is “overwhelming evidence” of a defendant’s guilt which
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7 At the evidentiary hearing before the PCRA court, Norris’ trial counsel stated
that whether the gun was stolen had no bearing on the issue of self-defense.
See PCRA Hearing Transcript, 5/24/2021, at p. 22. However, she testified
that she did not object to the prosecutorial comments or the trial court’s
instruction out of fear that such objections would only highlight the issue for
the jury. See id. at pp. 21-23. Trial counsel also opined that the
Commonwealth’s reference to the gun being stolen was not improper because
corroborative evidence was introduced to that effect. See id. We find
counsel’s reasons for declining to object to be entirely baseless.
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had been properly admitted. See generally Commonwealth v. Williams,
950 A.2d 294, 319-20 (Pa. 2008) (noting potential prejudice caused by
propensity arguments but holding that the error was harmless due to
overwhelming evidence of the defendant’s guilt).8
Upon a close review of the record and the properly admitted evidence
adduced at trial, we find that there was not a reasonable probability of a better
trial outcome for Norris had trial counsel objected to the propensity arguments
and the trial court’s instructions. The parties agreed that on the evening of
the shooting, Norris had sold fake crack cocaine to Odem and Godfrey, and in
retaliation, Godfrey stabbed Norris in his abdomen. This stabbing may have
taken place as much as an hour before the shooting (as the Commonwealth
contends), or just moments before the shooting occurred (as Norris contends).
The parties agree that Godfrey’s possession of a bloody knife was sufficient to
shift the burden of proof to the Commonwealth to prove beyond a reasonable
doubt that Norris did not shoot the victims in self-defense.
The Commonwealth carried that burden despite its improper propensity
argument. A surveillance video showed Norris walking into a convenience
store at about 10:05 p.m. He appeared disheveled and he had blood on his
____________________________________________
8 The prosecution had argued in Williams that the defendant was more likely
to have committed the subject robbery and murder because prior to those
crimes, he “allegedly stole a handgun.” 950 A.2d at 318. The Court noted
that this argument would have entitled the defendant to a cautionary
instruction “to protect against impermissible inferences of propensity.” Id.
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face, but the video did not make it clear whether he had yet been stabbed.
See Trial Transcript, 7/12/2017, at p. 132.
Odem was shot about an hour later that evening while walking on New
Castle Avenue in Philadelphia. She testified that just before the shooting, she
heard Norris call her name and laugh. When she turned around to see him,
Norris opened fire, striking her three times – in the jaw, hand and shoulder.
Odem was severely injured, and when emergency responders came to her aid,
no weapons were found on her person. She could remember very little of
what transpired after she was shot.
Within moments of the attack on Odem, gunfire broke out in a nearby
alley. Another eight rounds were discharged, and of those, Godfrey was struck
twice, causing fatal injuries. A number of witnesses heard the shooting, but
none saw how it had broken out. For that reason, this aspect of the case had
to be resolved in large part by forensic evidence.
Shell casings recovered at the scene of the Godfrey shooting proved that
Norris opened fire on Godfrey about 150 feet away from where Odem was
shot. Godfrey’s body, in turn, was found another 62 feet away from those
shell casings. See Trial Transcript, 7/13/2017, at pp. 83, 90. The entry
wounds Godfrey sustained conclusively established that he had his back to
Norris at the time he was shot. See id.
Immediately after the shooting, Norris went to his aunt’s home, hid the
firearm there, and soon received treatment for his stab wound at a hospital,
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where he gave an alias. When police interviewed Norris at the hospital, he
lied about his earlier whereabouts and about how he had received his injury,
as if to provide an alibi for the shooting. He also lied to his own family about
how his injuries were caused. Norris’ blood alcohol level at the time he
underwent surgery for the stab wound was 0.228, almost three times the legal
limit. See Trial Transcript, 7/18/2017, at p. 12.
The defense had contended that Godfrey was the initial aggressor, and
that Norris shot him and Odem almost immediately after Godfrey had stabbed
him with a knife. In the defense’s version of events, Godfrey attacked Norris
with a knife in a dark alley off New Castle Avenue, and Norris drew his weapon
to defend himself against assailants who he could not clearly see. The defense
conceded that Norris was intoxicated at the time, using that fact to argue that
it affected his aim which caused him to strike Odem accidentally with the first
volley of three rounds. From there, Norris ran away down the alley and
Godfrey chased him.
Again, due to poor lighting, his stab wound and his intoxication, Norris’
aim was poor when he drew his weapon against Godfrey, explaining why only
two of the eight rounds struck him.9 Godfrey abandoned his attack when the
first shots were fired, but he was hit just as he decided to run away. While
____________________________________________
9Four to five of the eight rounds struck the ground because the firearm was
pointed toward the ground when it was discharged. See Trial Transcript,
7/12/2017, at pp. 152, 165.
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still clasping the knife he used to attack Norris, Godfrey continued running
some distance until he succumbed to his wounds, explaining why Godfrey’s
body was found so far away from the shell casings corresponding to the eight
rounds Norris fired at him.10
The Commonwealth’s evidence of guilt was compelling, and much of it
was unexplained by the defense’s interpretation of the evidence. In particular,
Norris’ decisions not to report the incident to police, to flee the area, to hide
the weapon, and give a false story to police all bolster the Commonwealth’s
contention that Norris behaved consistently with having consciousness of
guilt. Norris’ intoxication would have also likely impaired his decision making
and self-control.
It is also not plausible that Godfrey would have chased Norris down a
dark alley for 150 feet after he had just witnessed Odem being shot. Godfrey
knew that he only possessed a knife and that Norris was armed with a gun.
Godfrey would have had no reason to pursue Norris, taking a knife to a
gunfight, and it would had made no sense for him to wait for Norris to open
fire before running away because he had already known from the outset that
Norris had the ability and intent to shoot him. The Commonwealth’s evidence
____________________________________________
10 The forensic evidence was inconclusive as to the distance the bullets
travelled before striking Godfrey. A forensic pathologist testified that, “beyond
a distance a foot-and-a-half or two feet, two feet looks the same as twenty
feet, looks the same as two hundred feet.” Trial Transcript, 7/13/2027, at p.
33.
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was overwhelming, and there was no reasonable probability that Norris would
have had a better outcome at trial but for his counsel’s deficient performance.
Thus, we conclude that Norris can satisfy the first two prongs of his
subject ineffectiveness claims, but not the third. This failure to establish the
prejudice prong of his ineffectiveness claim precludes him from being entitled
to PCRA relief. See Commonwealth v. Crispell, 193 A.3d 919, 936-38 (Pa.
2018) (finding that counsel erred in not seeking to exclude evidence about
prior bad acts, but holding that PCRA petitioner had not demonstrated
prejudice from the admission of the evidence or the lack of a cautionary jury
instruction); Commonwealth v. Hutchinson, 25 A.3d 277, 319-31 (Pa.
2011) (same). The PCRA court’s denial of Norris’ second and third claims of
ineffective assistance of counsel must, therefore, be upheld.
C.
Finally, Norris’ fourth claim is that his trial counsel was ineffective in
failing to argue to the jury in closing that, even if it found that he was not
completely justified in his use of deadly force, he could still be found guilty of
the lesser offense of voluntary manslaughter.
An intentional killing generally constitutes first-degree murder. See 18
Pa.C.S. § 2502(a). The lesser offense of voluntary manslaughter is defined
as “an intentional killing . . . committed as a result of an unreasonable belief
in the need for deadly force.” Commonwealth v. Washington, 692 A.2d
1024, 1029 (Pa. 1997); 18 Pa.C.S. § 2503(b); see also Commonwealth v.
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Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc) (“imperfect self-
defense” exists when the defendant “actually, but unreasonably, believed that
deadly force was necessary . . . . A successful claim of imperfect self-defense
reduces murder to voluntary manslaughter.”).
In addition to an actual but unreasonable belief in the need for deadly
force, voluntary manslaughter may be shown where the defendant kills
another while “acting under a sudden and intense passion resulting from
serious provocation by” the victim. 18 Pa.C.S. § 2503(a)(1). “If any of these
be wanting — if there be provocation without passion, or passion without a
sufficient cause of provocation, or there be time to cool, and reason has
resumed its sway, the killing will be murder.” Commonwealth v. Sanchez,
82 A.3d 943, 979 (Pa. 2013) (citation and internal quotation marks omitted).
Here, Norris’ PCRA claim lacks underlying legal merit. First, over the
defense’s objection, the jury was given a written instruction on voluntary
manslaughter. Norris himself stated to the trial court that he did not want the
jury instructed on voluntary manslaughter. See Trial Transcript, 7/18/2017,
at p. 58. At the PCRA court’s evidentiary hearing, trial counsel explained that
she had declined to argue a theory of voluntary manslaughter because she
was concerned the jury would be confused by or skeptical of alternative
theories and interpretations of the evidence. Counsel, therefore, decided to
only advance a theory that served as a complete defense.
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Based on our review of the record, we conclude that there was no
underlying error in trial counsel’s decision and there was a reasonable basis
for not using the closing to argue for a finding of incomplete self-defense. The
evidence did not support a finding of voluntary manslaughter, and counsel
cannot be faulted for only advancing a complete defense on Norris’ behalf.
Thus, counsel was not ineffective, and the PCRA court did not err in denying
relief on this claim.
Orders affirmed.
Judge McCaffery joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2022
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