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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Finley2letter 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).
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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.
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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 
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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 
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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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/17/2016
Circulated 02/23/2016 04:54 PM 

IN THE COURT Or COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

COMMONWEALTH 

VS. v Norris. Bruce opinion 

III/IihIIiiiiiiiiijj 

73 3 8z8z7s1 

BRUCE NORRIS 

BRINKLEY, J. 

CP-51-CR-141-819-27775 

FILE 

AUG 282015 

Criminal Appeals Unit 

first Judicial District of PA 

SUPERIOR COURT 

2512 EDA 2014 

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 

Circulated 02/23/2016 04:54 PM
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, 

5 

2005 PA Super 143, 
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