Com. v. Norton, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK NORTON :
:
Appellant : No. 1492 EDA 2018
Appeal from the PCRA Order April 12, 2018
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000754-2015
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JUNE 26, 2019
Mark Norton appeals pro se from the order entered in the Bucks County
Court of Common Pleas dismissing his first petition brought pursuant to the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. As Norton
has failed to preserve any issues for our review, we affirm.
On June 11, 2015, following a jury trial, Norton was convicted of retail
theft, criminal conspiracy, and possessing instruments of crime. The court
sentenced Norton to an aggregate term of fifteen to sixty months’
imprisonment. This Court affirmed Norton’s judgment of sentence. Norton did
not seek further review with the Pennsylvania Supreme Court.
On June 1, 2017, Norton timely filed the instant PCRA petition. The court
appointed counsel who filed an amended petition on August 4, 2017,
expanding upon the ineffectiveness claims raised in Norton’s pro se filing. The
PCRA court held an evidentiary hearing on Norton’s petition on November 29,
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2017. Following the hearing, Norton’s court-appointed counsel filed a motion
to withdraw and a Turner/Finley1 letter. Ultimately, the PCRA court
dismissed Norton’s petition and permitted PCRA counsel to withdraw. Norton
filed a timely pro se notice of appeal2 and complied with the PCRA court’s Rule
1925(b) order.
Through his Rule 1925(b) statement of errors complained of on appeal, 3
Norton asserted there was insufficient evidence supporting his convictions and
that the trial court imposed fines and a sentence disproportionate to his
convictions. See Appellant’s Rule 1925(b) Statement, 6/13/18, at ¶¶ 2-4.
Further, Norton generally alleged “ineffective assistance of counsel(s)” and
prejudice due to the Commonwealth “testify[ing] falsely.” Id., at ¶¶ 1, 5.
However, on appeal, Norton asks this Court to consider the following
issues:
1. Was [t]rial [c]ounsel ineffective by failing to secure cell phone
records in order to introduce them at trial?
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 While the notice of appeal Norton filed on April 27, 2018 was technically
defective, Norton corrected these defects by filing a compliant notice of appeal
on May 11, 2018.
3Norton filed two Rule 1925(b) concise statements; one before the PCRA court
ordered the filing of a concise statement on June 7, 2018 and one following
the PCRA court’s order on June 13, 2018. As the June 13th statement contains
all of the issues set forth in the June 7 th statement, we will cite only to the
June 13th statement.
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2. Did [t]rial [c]ounsel fail to investigate the (Sales Clerk) witness
whom [] Norton was speaking with, in order to support his non-
participation in this criminal activity?
3. Was [t]rial [c]ounsel ineffective by not objecting to assert []
Norton’s Fifth Amendment right to counsel and his
corresponding State Constitutional right to counsel were
violated when the prosecution presented it [sic] self as its own
witness who testified falsely?
Appellant’s Brief, at 5 (unpaginated).4
Prior to addressing the merits of Norton’s claims on appeal, we must
determine which issues, if any, are preserved for our review. It is well-
established that any issue not raised in a Rule 1925(b) statement will be
deemed waived for appellate review. See Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998). Further, an appellant’s concise statement must identify
the errors with sufficient specificity for the trial court to identify and address
the issues the appellant wishes to raise on appeal. See Pa.R.A.P.
1925(b)(4)(ii) (requiring a Rule 1925(b) statement to “concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge”). A Rule 1925(b) concise statement
that is too vague can result in waiver of issues on appeal. See
Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa. Super. 2001) (“a
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4 Norton makes a series of other arguments in his brief and reply brief.
However, he has waived these arguments by failing to include them in his
statement of questions involved on appeal. See Pa.R.A.P. 2116(a) (“No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby”).
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concise statement which is too vague to allow the court to identify the issues
raised on appeal is the functional equivalent of no concise statement at all”).
Instantly, Norton argues that trial counsel was ineffective for failing to
subpoena his cell phone records, interview a witness, and object to the
Commonwealth’s “testimony.” See Appellant’s Brief, at 5 ¶¶ 1-3
(unpaginated). However, in his Rule 1925(b) statement, Norton only
challenges the “ineffectiveness of counsel.” Appellant’s Rule 1925(b)
Statement, 6/13/18, at ¶ 5. Because Norton failed to raise these specific
aspects of his ineffectiveness argument in his Rule 1925(b) statement, the
trial court was unable to identify and address these issues in its Rule 1925(a)
statement.5 Therefore, Norton has waived all of his claims on appeal by failing
to include specific allegations of ineffectiveness his Rule 1925(b) statement.
See Pa.R.A.P. 1925(b)(4)(ii).
Order Affirmed.
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5 While the PCRA court’s 1925(a) opinion did address a claim later raised in
Norton’s appellate brief, i.e., that trial counsel’s failure to object to the phrase
“CB radios” in the Commonwealth’s closing argument constituted ineffective
assistance, this does not preserve Norton’s issue for review. See
Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa. Super. 2002) (holding “that
when an appellant fails to identify in a vague Pa.R.A.P. 1925(b) statement the
specific issue he/she wants to raise on appeal, the issue is waived, even if the
trial court guesses correctly and addresses the issue in its Pa.R.A.P. 1925(a)
opinion”). It was Norton’s duty, not the PCRA court’s, to frame the issues he
wanted addressed on appeal. See id.-4-
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/19
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