### J-S76018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. ALBERT THEODORE GREELEY, III Appellant No. 835 WDA 2014 Appeal from the PCRA Order April 24, 2014 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000133-2009 BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J. MEMORANDUM BY PANELLA, J. FILED FEBRUARY 11, 2015 Appellant, Albert Theodore Greeley, III, appeals from the order entered by the Honorable Joseph M. George, Jr., Court of Common Pleas of Fayette County, that denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). After careful review, we affirm. According to Greeley, the underlying factual predicate of this appeal is undisputed. See Appellant’s Brief, at 3. On October 30, 2008, Trooper James Pierce observed Greeley operating a vehicle he later confirmed to be a vehicle owned by another [person.] Pierce testified he initially approached Greeley “because he knew” Greeley did not possess a valid driver’s license. Upon stopping behind Greeley’s vehicle to purportedly investigate why Greeley was operating a vehicle without a driver’s license and also to determine who was the owner of the vehicle, Greeley identified to the trooper that the vehicle was owned by James Silbaugh. The trooper requested proof of

### J-S76018-14

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ownership and Greeley opened the passenger side of the vehicle whereupon Trooper Pierce smelled burnt marijuana emanating from inside the vehicle. Trooper Pierce was given permission by Greeley to conduct a pat-down search of his person, wherein, Pierce discovered a small quantity of marijuana inside Greeley’s pants pocket. Almost immediately thereafter, Greeley’s mother
-in-law and father
-in-law, Darnice and Dennis Sykes, arrived at the scene. Greeley’s mother
-in-law walked over to Greeley and gave him a hug. Pierce “pulled Greeley away from Mrs. Sykes” and noticed he was “holding a wad of cash in his left hand.” ... After separating Greeley away from Mrs. Sykes, another vehicle arrived at the scene and Mrs. Sherry Silbaugh (the wife of the putative owner of the vehicle) was approached by the trooper to obtain consent to search the vehicle Greeley had been operating. As a result of the vehicle search, Pierce recovered from the enclosed vehicle console a plastic baggie containing a white powder later confirmed to be cocaine. The seized vegetable matter recovered from the Greeley’s pants pocket was also confirmed to be marijuana. At trial, Corporal Dennis Ulery of the Pennsylvania State Police was qualified as an expert witness. Corporal Ulery provided his opinion that the cocaine was possessed by Mr. Greeley, ... with the intent to deliver for sale. ... Based upon the Corporal’s experience in narcotics investigations, the cash “possessed by Greeley was indicative of a drug dealer’s ‘stack.’” Corporal Ulery cogently testified that he was not aware that when Trooper Pierce initially patted down Greeley, Pierce did not “feel” the wad or stack of cash. Corporal Ulery also testified he was not aware of where the cocaine was located, once discovered, by Trooper Pierce. During the course of the trial, the Commonwealth failed to produce the actual funds or wad of cash attributed to Greeley and attributed by Ulery as what “drug dealers” possess incident to distribution activity. Instead, the Commonwealth produced photographs of the cash.

### J-S76018-14

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During the trial, Trooper Morrison was allowed to testify regarding the cash allegedly obtained from Greeley, in response to whether any DNA evidence was obtained from the cash, that the cash “went to forfeiture.” Appellant’s Brief, at 3
-5 (citations omitted). Despite a previous mistrial in this matter due to testimony that the cash had gone to forfeiture, defense counsel did not request a mistrial, and instead requested a curative instruction to the jury. At the conclusion of the trial, the jury found Greeley guilty of possession of marijuana, and possession of cocaine with the intent to deliver. This Court subsequently affirmed the judgment of sentence, concluding that the evidence at trial was sufficient to sustain both convictions, and that Greeley’s request for a new trial due to the testimony that the money had gone to forfeiture was waived. Shortly thereafter, Greeley filed a pro se PCRA petition. The PCRA court appointed counsel, and an amended PCRA petition was filed. After holding hearings on the amended petition, the PCRA court denied Greeley’s petition. This timely appeal followed. On appeal, Greeley purports to raise only two issues, the ineffectiveness of trial counsel and the ineffectiveness of appellate counsel. However, each of these issues is actually merely an umbrella statement for a myriad of ineffectiveness claims for each counsel.

### J-S76018-14

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“Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error.” Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013) (citation and internal quotation marks omitted). “The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Id. (citation omitted). The PCRA court’s credibility determinations are binding on this Court, where there is record support for those determinations. See Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013). To establish ineffectiveness of counsel, “a PCRA petitioner must show the underlying claim has arguable merit, counsel's actions lacked any reasonable basis, and counsel's actions prejudiced the petitioner.” Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citation omitted), appeal denied, 84 A.3d 1062 (Pa. 2014). Moreover, “[w]e presume counsel is effective and place upon Appellant the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d 1262, 1266-1268 (Pa. Super. 2008) (citation omitted). Regarding the second requirement, if a reasonable basis exists for the particular course chosen by counsel, the inquiry ends and counsel’s performance is deemed constitutionally effective. See Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003). “Prejudice means that, absent counsel’s conduct, there is a reasonable probability the outcome of the proceedings would have been different.” Id.

### J-S76018-14

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(citation omitted). Failure to satisfy any prong of the test requires that the claim be dismissed. See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004). With these standards in mind, we have reviewed the appellate briefs and certified record on appeal and conclude that the well
-written opinion of Judge George thoroughly and adequately addresses the issues raised by Greeley in this appeal. See Trial Court Opinion, 4/24/14, at 7-18. We therefore affirm on the basis of the PCRA court’s opinion. Order affirmed. Jurisdiction relinquished. PJE Ford Elliott joins in the memorandum. Judge Olson concurs in the result.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/11/2015Circulated 01/21/2015 12:43 PM From: 05/08/2014 10:4G



### IN THE 

# ooun,rr OF COMMON PLEAS OF

FAYETTE COUNTY, PENNSYLVANIA COMMONWEALTH OF 

### PENNSYLVANIA, CRIMINAL ACTION

v. 

### CASE NO. 133 OF 2009 

### ALBERT T. GREELEY, III, 11314 P.002/020

Defendant/Petitioner. JUDGE 

### JOSEPHM. GEORGE, JR.



### ATTORNEYS AND 

### LAWFIRMS Anthony 

### S. Iannamorelli, Jr., 

### Esquire, Assistant. 

### District Attorney, 

### For the Commonwealth HerbertA. 

### Terrell, Esquire, 

### For the Defendant!Petitioner 

## OPINIONAND ORDER GEORGE, J. April 24, 2014 This matter comes before the Court on Defendant/Petitioner's [hereinafter, 

### "Petitioner"] Amended Petition under the 

### Post Conviction Relief Act. ("PORA"). Petitioner claims ineffective assistance ofhis prjvate counsel at trial and appointed counsel on 

### appeal. Because Petitioner's evidence fails 

### to meet the statutorily prescribed standards for ineffective assistance of counsel, the Petition must be denied. ISSUES PRESENTED 

### Petitioner asserts that uo reliable adjudication ofhis guilt 01' 

### innocence could have taken place because trial counsel:
a. Elected not to call. all fact 

### witnesses;Circulated 01/21/2015 12:43 PM From: 05/0BI2014 10:46 ....314 p.OO:J/020

b. 

### Accepted the trial court's 

### curative instruction, rather than making 

### a motion for 

### mistrial when l 

### during cross-examination, the Commonwealthls witness referred to money taken from Petitioner as having

### been taken by the forfeit.ure department; c, 

### Failed to object to t.he submission of

### demonstrative evidence, consisting ofphotogl'aphs ofthe money seized at 

### the time ofPetitioner's arrest; d. Failed to object to t118 Commonwealth's quali.fied expert testimony on amounts 

### ofmonoy 

### and drugs as indicators 

### ofPetitioner's intent, 

### when no 

### related expertreport wasprovided 

### in discovery; and
e. Failed to request the standard jury instruction on expert witness testimony, Petitioner likewise aSS81'ts that no reliable adjudication of his guilt or innocence could have takenplace beca.use appellate 

### counsel:

a. Failed to communicate with Petitioner db'eetly, relying instead on his written correspondence; b. Decided not to aTgue all 

### errots desired 

### by Petitionel' on dil'ect 

### appeal; and
c. Failed to file 8. petition for fl.J.l.owanc0 of appeal ("PAl\") with the 

### Supreme Court ofPennsylvania. STATEMENT OF THE CASE On October 6, 2011, a j\.uy found 

### Petitioner guilty on two counts of violating the Contl'oiled Substance, Drug, Device and Oosmetic Act,l Said verdict 

### resulted from the COlllmonwealth's second attem.pt to convict Petitioner. The first attempt
was declared n mistrial by Judge Gerald 

### R. Solomon after a Commonwealth witness gave detailed testimony that money seized from Petitioner's person at the time of his arrest had gone to 

### asset**forfeitul'(~.**

I 35 Pa.C.s. §§ 780·113(a)(30) and (a)(31). 2Circulated 01/21/2015 12:43 PM From: 0510812014 10:47 ..314 P.0041020

The case was reassigned to Judge Ralph C. Warman, who presided over Petitioner's second trial an.d sentence, The instant Petition was assigned to th.is Court, whereupon we conducted an evidentiary hearing and heard argument on February 19 and March. 18, 2014.2 Petitioner retained Attorney Paul Iannotti for the second trial. Petitioner claims Mr, Iannetti was ineffective before and during trial. Attorney Iannott.i entered his appearance on June 30, 2011, approximately three months before the second triul. Given the case history, he decided it was inappropriate to file additional pretrial motions,S Nevertheless, Mr, Iannotti recalled advising Petitioner, performing backgI'ound investigation) spealcing to his mother, and reviewing caserelated documents,4 Following the verdict, Mr, Iannetti recalled that Petitioner did not indicate a desire to appeal 01' file post-trial motions. Shortly before Petitioner's time to appeal lapsed, Mr. lanetti was permitted to withdraw, Peti.tioner failed to t.ake a direct appeal, and filed a 

### pro se PORA Petition on December 22, 2011, No hearing 011 that motion was held. Petitioner's newly appointed counsel, Dianne Zel'ega, filed a petition for leave to appeal 

### nuncpro tunc, which was granted by Order dated February 27, 2012. Ms. ZEll'ega filed a timely

2 By agreement of the pal.'ties, the taking of testimony and evidence was biful'caterl al'\ between Petitioner's potenti.al fact. witnessC:ls andhis trial and appellate counsel.. ;IThe Cotu't notes that such Illotions were filed prior to the first tria1. 4 Petitioner !'aises inadeq1.1ute trial prepRrRtjon in his clHims of ineffectiveness. We cr8dit Mr. Iannetti's testimony concerning his pre-trial investigation. H.is awareness of all the witnesses that Petitioner presented to this Court during the PORA hearing, and his decision not to

## me additi.onal motions, as discusseci, demonstrates that Petitionol"s claim laclte merit. 3Circulated 01/21/2015 12:43 PM From: 05/0B/2014 10;47 11314 P.005/020

briefon Jantuou'y 24, 2012. Petitioner contends that Attorney Zerega was ineffective in her preparation and execution ofhis appeal. On February 21, 2013, the Superior Court affirmed Petitioner's convictLon and sentence. Petitioner attempted to contact Attorney Zerega to no avail. At some point before expiration of the time to file a PA"i\., Attorney Zerega advised Petitioner's**motheJ~'** that fUl'ther appellate review was without merit. Oonseq1.1ently,
no FAA wa.s filed.rs Attomey James Natale was appointed conflicts counsel on Petitioner's post· conviction matters. On Apl.'il 29, 2013, Petitioner filed a pro se motion to amend his original PORA Petition. Mr. Natale filed a motion to withdraw and a nO 

### mel'it brief
on September (1, 2013. 1'he Court allowed Mr. Natale to withdraw, but granted Petitioner's motion to amend. Petitioner retained Attorney Herbert A Terrell, who filed the instantAmendedPetitionon October 16, 2013. DISCUSSION Standard 

### ofRevi.ew To be eligible for reliefuuder the 

### peRA, Petitioner mustplead and prove 

### by a preponderance ofthe evidence [tJhat the [challenged] conviction or sentence resulted from one 01' more ofthe following: (i) A violation of the Constitution. of this Commonwealth or the Constitution or laws of t.he United States which, in the circumstances of the particular case, so undermined the truth·

5 ForjUl'isdictional purposes, we note t.hat f.ailure to ttlke an appeal within the prescribed time limits constitutes exhaustion of direct appeall'emedies under t.he PCRA. See 42 Pu.C.S. § 9545(1)(3). 4Circulated 01/21/2015 12:43 PM From; 05/08/2014 10;48

determiningprocess that no reliable adjudication of guilt or innocence could have taken place. (ii) Ineffective assistance of counsel which, m the circumstances of the particular case, 80 undermined the truth·determining process that no reliable adjudication of guilt 

### or innocence could have 

### taken place. (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent. (iv) The improper obstruction by government officials of the potitioner's right of appeal where. a meritorious appealable issue existed and was properly preserved in the trial court. (v) Deleted. (vi) 

### 'rhe unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial ifit had been introduced. (vii) The irnposition of a sentence greater than the lawful maximum. (viii) A proceeding in a tribunal withoutjurisdiction. 42 Pa.C.S. 

### §9543. #::114 P.006/020

The ineffective assistance delineated m 

### § 9543 encompasses "all constitutionally-cognizable claims ofineffective assistance ofcounsel, i.e., all claims that the petitioner was depl'ived of his or her Sixth Amendment6 and Article I,

QUnited Stat.es Constitution 

### 5Circulated 01/21/2015 12:43 PM Ffom: 05/08/2014 10:46 11314 P.0071020

Section 97rights to counsel." Com. ex rel. Dadarlo v. Goldberg, 773 A2d 126, 130 (Pa.2001). To prevail 011 a claim alleging counselfs ineffectiveness under the PCRA, [Petitioner] must demonstrate (1) that the underlying claim is of arguable merit; (2) the.t counsel's course of conduct was without 

### a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counselfs illeffecbveness, i.e. there is a reasonable probability that but. for the act or omission in question the outcome of the proceeding would have been different. 

### Com. v. Bracey, 795 A2d 935, 942 (Pa. 2001) (citation omi.tted); 

### see 

### Com. v. Brlsanet, 817 A.2d 1060, 1066 (Pa. 2002) (applying the 

### same standal'd in rebutt.ing the traditional p1'6SlUnption of cQunsels' effectiveness).• fA failure to satisfy any prong ofthe testfor ineffectiveness 

### will require rejection ofthe claim." Busanet, 817 A.2d at 1066. In addition, where it is clear that a petitioner 'fhas not lUet the prejudice prong of' the ineffectiveness standard, the claim may be dismissed on that basis alone and the court need not; first determine whether the first and second prongs have been met." Com. v. Trauaglia, 661 A.2d 352, 357 (Pa. 1995) (citing Strichland v. Washington, 466 U.S. 668, 697 (1984». To demonstrate the reasonable probability of prejudice, "a (petitioner] is required to show that counsel's ineffectiveness was of such magnitude that the verdict would have been different. absent counsel's alleged ineffectiveness." 

### Com, u. Cox) 728 A.2d 923, 930 (pa. 1999) (internalcitation. and quotation omitted); 

### see Com.

7 PEll1mlYlvRnia Constitution 6Circulated 01/21/2015 12:43 PM From; 0510812014 10;48 11314 P.0081020

u. Howard, 645 

### A.2d 1300, 1307 (Pa, 1994) (clarifying 

### that, in the context of prejudice, "reasonable probability" should notbe confused with lesser standards). Finally, regardless of the prong addressed, counsels' actions "cannot be evaluated ill 

### hindsight bnt must be examined in light of the Ch'C\lmstances at the time." Com. (), Ha,rdcastle, 701 

### A,2d 541, 

### 547 (Pa, 1997), Only 

### those actions "'so unreasonable that no competent lawyer would have chosen [them]'" 

### will support an ineffective assistance claim, Com. v. Ervin, 

### 766 A.2d 859, 862-63 

### (Pa, Super. Ct. 2000) 

### (quoting 

### Com. v. IYfiUer, 431 A,2d 233, 234 

### (Pa. 1981)). 

### This Court's denial ofpost-conviction reliefmay be affirmed if

### it is "supported by the evidence ofrecord an.d
.. , fl'ee 

### from legal 

### erroL'." 

### Com, v, Broohs, 

### 875 A.2d 1141, 1144 

### (Pa. Super. Ct. 2005) (citation omitted). Affirmance is also appropriflte upon any independent

### baSIS, See Broohs, 

### 875 A.2d at 1144.



### Decision Not to Call All FactWitnesses Mr. Iannetti electe.d not to pl'esent all availftble fact witnesses. Though he
was aware of these \ovitnesses, 

### he stated that the uncalled individuals were either unhelpful or harmful to Petitioner's case. 8 

### Petitioner contends that choice rendered Mr. Iannettiineffective. Petitioner presented two 8\lCb 

### fact witnesses9

### that he contends should have been called during trial. The first was Ms. DaI'neise Sykes, the gTandmother 

### of

8 See SUPI'CI· note 4. 9 Petitioner argues that a third witness, Keiaha Debel"!.'Y, would have provided tostimony concerning the origin of the lal'ge sum of money seized from Petitioner,Pet,'s Br. Supp 9 n, 2. However, that witness hewing never been presented to the Court., we are witho\tt a credible basis t·o note whether 7Circulated 01/21/2015 12:43 PM From: 06/08/2014 10:60 11314 P.009/020

Petitioner's daughter. Thoug'h Ms. Sykes was not 

### a. witness at Petitioner's t.rial, she
was the subject of testimony. PSP Trooper Charles Morrison testifwd that Ms. Sykes gave Petitioner a hug as he was about to 

### be arrested, whereupon Trooper Morrison observed Petitioner

### hand Ms, Sykes a significant qnantity of mOlley. Ms. Sykes testified that Petitioner often gave money to assist inpayments for 

### his child's private schooling. 

### Ms. Sykes testified on cross-examination that Petitioner's onlyjob was as a dishwasher at Denny's Restaurant.. She further stated that

### Mr. Iannetti never contacted her for any purpose. 

### Regarding Ms. Sykes, the 

### absence ofher testimony is not 

### a basis for prejudice upon which the result of thE! trial would have differed. In particular, the fact that Petitioner often gave Ms, Sykes money and Ms. Sykes' testimony of Petitioner's position 

### at Denny's Restaurant, in 

### conjundion with the Commonwealth's evidence ofthe $6,000 seized10, was more likely to inC1'88Se the suspicion that Petitioner was 

### engaged in 

### illegal activity, The second vvitness was Ms. Shcl'1:i Silbaugh, Petitioner's 

### cousm. We find that Ms. Silbaugh's prospective testimony was not credible. Even accepting the substance of 

### her testimony as tl'ue, 

### it amounted to the following: On the day of 

### Petitioner's an'est, Ms. Silbm.lgh, by her own 

### admission, was addicted to 

### various controlled substances. I I To that end, 

### it was the practice ofher and her husband to

Petitioner satisfies any of the requil'p.ments for ineffective assistance of counsel. See Com. u. Lauro, 819 A.2d 100, 105 (Pa. Super. Ct. 2003) (setting forth the neceSSflt'Y elements). 10See SJIpro note 9. 11 "cocai.ne. crack. whatever
...." 8Circulated 01/21/2015 12:43 PM From: 05/08/2014 10:50 1/314 p,010/020

loan out her husband's personal vehicle in exchange for drugs or money to be used for drugs, Ms. Silbaugh testified that Petitioner, not having a car himself, phoned Ms. Silbaugh to bon:ow the vehicle so that Petitioner could pick up his daughter at school. Ms. Silbaugh further stat.ed that, upon learning that the vehicle had been pulled over, she gave the polbl her written consent to search the same. Despite her earlier admission, she claimed that Petitioner never gave her drugs, or anything for that matter, in exchange for use of the vehicle, Acc01:dingly, we are ofthe opinion that Ms. Silbaugh'stestimony would have almost certainly caused prejudice. Having heard and reviewed the above testimony, the Court 

### 'is of the opinion that Petitioner's claim fails upon allprongs ofthe in0ffectiveness test. 

### "Porfeiture,"No Motionfor Mistrial, 

### and Curative Instructi,on During the second trial, Commonwealth witnesses again noted forfeiture of the money seized at the time of Petitioner's arrest. Petitioner contends that a motion for mistrial was the only appropriate remedy. Because the merits of a 

### motion for mist.riall'eq"uires prejudice be shown, that analysis is dispositive 

### of the first and third prongs ofthe testfor ineffective assistance. "When an event prejudicial to the dofendant occurs during trial only the defendant may move for a mist.rial; the motion shall be made when the event is disclosed. Otherwise, the 

### trial judge may declare a 

### mistrial only for reasons of manifest necessity." Pa.RCl'im.P. 605. Failure t.o request a 

### mistrial or curative



### 9Circulated 01/21/2015 12:43 PM Fforn: 05/06/2014 10:51 1t:J14 P.Oll/020

instruction results in waiver of that issue. Com, 

### v. Brown, 359 A.2d 398, 396 (Pa. 1976).A motion for mistrialis appropriate "where the alleged prejudicial event may reasonably be said to deprive the defendant of a fail' and impartial tl'ial." Com. v. 

### Jones, 668 A.2d 491, 503 (Pa, 1995), A trial is impartial or unfair where an event forms in the jurors' "minds a 

### fixed bias and 

### hostility toward the defendant, thus 

### impeding their ability to weigh the evidence objectively and render a true verdict." Com, v, Chmiel, 889 A.2d 501, 542 (Pa. 2005) (emphasis aelded). Because the prejudice must be fixed, it may be dispelled by curative measures. Com. v, Walls, 396 A.2d 419, 421 (Pa. Super, Ct. 1978), Though "thejury is presumed to follow the court's instructions," Jones, 668 A.2d at 504, the quest.ion "[w]hethol' the expOSUl'e of the jury t.o impropel' evidence can be cured by all instruction depends upon a consideration ofall the circUll1stanees," 

### Com. 

### v, Morrl:s, 519 A.2d. 374,377 cPa, 1986). The specific exchange givingrise to the forfeiture comment occulTed on crossexamination of Trooper MOl'rison. In attempting to undermine Petitioner's ownership of the money and drugs, Attorney Iannetti asked the Trooper whether the money had been tested for DNA. Trooper' Morrison re8ponded, "That actually went 

### to, that's a forfeiture. 

### ForfeiturG [as in the Forfeiture Department) would have to answer that question for you." (N.T., Oct, 6, 2011, p. 44). Rather than move for mistrial, Mr, Iannetti immediately requested a curative instruction, He reasoned that 

### the court would be unwilling to grant a mistrial and that the instruction ,sufficiently dispelled any prej'udice. The court's curative

10Circulated 01/21/2015 12:43 PM From; 0610812014 10:61 11314 P.012/020

instruction was as follows: "Ladles and gentlemen of the jury, the fact that the currency would have been submitted to asset. forfeiture has no bearing upon this
case. 

### It has no bearing upon the g'uilt or innocence ofthe defendant." (N.T., Oct. 5, 2011, p. 44). Viewing the case in its totality, we do not believe that allY flxed bias resulted from Trooper MOl'l'ision's passing refel'ence to forfeiture. 12 Furthermore, the Jury would have been, or become, fully aware that the mon(3y in question was t(;\ken during the course of Petitioner's arrest and that Petitioner attempted to hand the money off to Ms. Syl{es. Those facts alone provided the jurors an objective basis upon which tojudge Petitioner's guilt. Considering those facts, we cannot saythat a 

### , mistrial should. have resulted. Petitioner's 

### claim thus 

### fails on the first and third prongs of the test. for ineffectiveness. Finally, the Court bolieves our analysis 

### also demonstrates that Petitionel' cunnot meet the second prong of the ineffectiveness test, because Mr. Iannetti had a reasonable basis for his course ofconduct. 

### Failure to Object

### to the ConmlOnwealth's DemoIlstx'ative Evidence

The only evidence available for trial ofthe money seized during Petitioner's arrest was an authenticated photograph ofthe money on the date it was seized. It showed six bundlos of money, each containing ten $100.00 bills 13 , 

### fot a total of $6,000.00. The photograph was admittedinto evidence without objedion.



## ----------- 12 The Court's t'eview of the transcript of Petitioner's mistrial also supports Oul' conclusion. In that case, the forfeiture comment.s were elicited by the Assistant Distdct Attorney. The resulting, relatively lengthy description of the forfeiture and the process of forfeit\U'e were far more likely to cause the fixed bias necessary for fl fi.nding ofprej\.\dicC;l. (See N.T., Aug. 5, 2010, p. 28-29). !:)Acommon packaging methodknown 8S "a seack" in the dnlg trade 11Circulated 01/21/2015 12:43 PM From: 05/08/2014 10:52 11314 P.013/020

First, Petitioner contends that Mr, Iannetti should have adduced evidence that. the money came from Petitioner's occupation, Given Petitioner's only known occupation, Mr. Iannetti thought that would be unhelpful. For the reasons stated above, the Court agrees. Second, Petitioner complains that 

### Mr. Iannetti should have objected to admission of the pbotograph. Mr. Iannetti testified that, whon he believes an objection would be futile, his strategy is to avoid drawing additional attention to a particular piece of evidence. In the Court's experience, that pl'actice is designed to inhibit rathel' than create prejudice. For that reason, we also find it to be a reasonable and non-prejudicial decision. 

### While it is certainly possible that picture may have helped the jurors convict Petitioner, the prejudice standard requires deprivation of a fair trial. See Chmiel, supra; see also Kopytin v. Aschinger, 947 A.2d 739, 7t17 (Pa. Super. Ot. 2008) (test for introduction of demonstrative evidence requires that the court balance its probative value against the possibility of

### prejudice).14 

### No Objection to Expertrrestimony The Commonwealth presented the expert opinion testimony ofPSP C011,)Ol'al Dennis Ulery. 

### As is often the case, Corporal Ulery testified that the amounts ofcash ,and controlled subst.ances, marijuana and cocaineH >, found on or neal' Petitioner

11 Our review of the transcript of Petitionel"s trial demonstrates that propel' admission procedures were followed. (N.T., Oct
.. 5, 2011, p, 40).**l.~** 9.5**g~'ams** and 124 g'l'all1s, l'sspectively (N.T., Oct. 5, 2011, p. 52) 12Circulated 01/21/2015 12:43 PM From: 05/0B/2014 10:52 /1314 P.014/020

were indicative of the intent required under the noted statutory ptoviSlons. 16 Mr. Iannetti could not recall receiving an expert report t.o that effect. He did not object
on that basis, but attempted an impeachment based on the Corporal Uler-is willingness to testify against any defendant in like manner. Pa. 

### R.ule of Criminal Pl'ocedure 

### 573 contains both mandatory and discretionaryprovisioris for pretrial discovery. 

### Mandatol'Y. In all court cases, onrequest by the defendant, and subject to any pl'otective order which t.he Commonwealth might obtain under this rule, tho Commonwealth shall 

### d.isclose 

### to the defendant's attorn.ey all of the following requested items or information, provided they are material to tho instant case, The Commonwealth shall) when applicable, permit 

### the defendant's attorney to inspect and copy Ol.' photograph such 

### iteuls.

(0) 

### any results or reports of scientific tests, expert opinions, and written or recorded 

### reports of polygraph examinations or other 

### physical or mental examinations 

### of the defendant that are within the possession or control of the**atto~.'ney** fm' the Commonwealth


### Discretionary With the Court.
(b) If an expert whom the attorney for the COlllUlonwealth intends to call in any proceeding has not prepared a l'eport of examination or tests, the court, upon ruotion, may order that the expert

)6 In addition, Corporal Ulery testified that the street vah.le of the**l.'ecoven~d** cocaine was approxilUlltO)Y $12,400.00. He furt·hel' stated that the manner in which the rhoney wae packed, discussed below, is a common pract.ice in tho drug trade, (N.T., Oct. 5, 2011, p, 52·53) 13Circulated 01/21/2015 12:43 PM From: 05/06/2014 10:50



### prepare, and that the attol.'ney for the Commonwealth disclose, a report stating the subject mRtter on which the expert is expected to testify; the substanoe of the facts to which**thl~** 

### expert 

### is expected 

### to testify; and a summary ofthe expert's opinions and the 

### grounds for each opinion. Pa. 

### R. Crim, 

### P 573 (emphasis original). #314 P.015/020



### Plainly, Rule 573 only requires disclosure where a report has been filed and is within the Commonwealth's possession. 

### No report 

### was filed or otherwise within the Commonwealth'spossession. Petitioner's claim is thus without merit. 

### Failure to Request Standard Expert,\Vitness Jury Instruction Related to Corporal Ulery's testimony, Petitioner asserts that Mr. Iannetti failed to reqnest the' basic expert witness instruction provided by 

### the Suggested Standard 

### J\H'y 

### Instructions, The Court's review of the trial transcript shows that assertion to be correct.I? 

### "When a court instl'ucts thejury, the objective is to explain to thejury how it 

### should approach its task and the factors it 

### should consider in reaching its verdict." Com. 

### v, Chambers, 980 

### A.2d 35, 49 (Pa. 2009) 

### (citation omitted). The nature of a court's instructions to the jury is "within the discretion ofthe court, so long as the court accl.U'ately instructs the jUl'Y 

### on the appropriate legal principles involved," 

### Com, v. Willis, 990 A.2d 773, 776 (Pa. Super. Ct. 2010) (citation omitted). A court may even choose its own words so long as the law is cleal'ly, adequately, and acctll'ately presented. Com. v. Baher, 

### 963 A.2d 495, 507 (Pa, Super. Ct. 2008).

11 The CommonweRlth's Memorandum in Opposition to Defendant's PCRA Petition mistakes this Court's questions dtU'ing the PCRA hearing, cQIlcerning the claim that no expel't instruction was given, fol' a declarat.ion that said instruction existed in the record. See Comm's Mem, Opp. 3. 

### 14Circulated 01/21/2015 12:43 PM Ffom: 06/0812014 10:64 11314 P.016/020

The Advisory Committee note to the particular instruction Appellant faults Mr. Iannetti for not requesting, states, "therE! is a danger thatjurors may 

### be unduly deferential to expert opinion. 

### 'rhe content and tenol' of 

### [this instruction) are meant to guard against this danger." Pa. S.S.J.I. 

### § 4.10(A). 'rhel'ef'ol'e, "[a] general charge

on evaluating the credibility of' all witnesses l8

... should be given along with this instructi.on,'" Pa. 

### 8.8.(J.1. § 4. 10(A) (emphasis added). Nonetheless, we are of the opinion that this omission IS of insufficient magnitude to have changed the ontcome of the 

### ttial, The underlying analysis of intent is ono offactors, not elements. For example, quantity ofa drugpossessed can be dispositive ofthe intent. 

### See Com. v. Ratsal71.y, 934

### A.2d 1233, 1237 (Fa. 2007). 

### [I]f the quant-it-yI9 ofthe controlled substance is not dispositive as to the intent, the court may look to other factors. Other factors to consider when determining 

### whether a defendant intended to deliver a controlled substance inclu.de the manner in which the controlled substance 

### was packaged, the behavior of the defendant. the presence of drug paraphernalia, and**Im~ges** (sir..) sums of cash found in possession of the defendant. 

### The final factor to be oonsidered is expert testimony. Expert opinion testimony is admissible concerning whether the facts surrounding the possession of controlled. substances are consistent with an intent to deliver rather than with an intent. to possess 

### itfor personal use. 

### Ratsmny, 934 A.2d at 1237·38 (emphasis added).

18 We note that the trial court in this ct'lse did provide tbe general credibility instruction. 19 Quantity, withol1t mor6, may yield a lesH reliable analysis. See Com. v. Felton, 67 Pa. D.&C.2d 541, 546 (Pa. Com. Pl. 1974). Plainly though, thatis not. the case hel'e. 15Circulated 01/21/2015 12:43 PM From; 05/0a/2014 10:54 ....314 P.017/020

Expert testimony is but one factor among many. Expert testimony, at best, assists the trier of fact in flUding the intent required under the statute. Review of the record establishes that Petitioner's case presented a number ofthe noted factors, indcpendent ofthe need for expert opinion. 

### 'rhe trial court's instructions also show due acknowledgment ofthose factors. 

### (See N.T., Oct. 5,2011, pp. 75·76). 2. 

### Alillellfite CotLU&Ell No Direct Contactwith Petitioner Attorney Zerega testified that as conflicts counsel 

### she rarely 

### has direct contact with hEll' clients. Such was the caSG with Petitioner. Her reasons fOl' this pl'aetiee included 

### the time and expense ofpersonal contact and that 

### either letters or telephone conversations, and review 

### ofthe l:ecord, often provide 

### sufficientbases for effective appellate briefing and argument. Contrary to Petitione",r's early assertion, Attorney Zerega did file a brief on appeal. That brief was entered into evidence as Commonwealth's "Exhibit 1." Further) Ms. Zerega test;ified that Petitioner's letters appeared thorough and 

### articulate. In herjudgment, those 

### letters, along with her review of

### the record, were sufficient. Ms. Zel'ega elected notto include all matters complained ofin Petitioner's letters, either on the basis that they wore fodder for post-conviction relief or that they lacked merit. On cross, she did note that Petit.ioner's complaint concerning the expertjuryinBtruction was never discussed or used as a basis for appeal. Counsel's limited contact with a defendant will only SUppOl't a claim of ineffectiveness where the functional resultis a '''complete denial of

### cou1l8el.'" 

### Corn. u,

16Circulated 01/21/2015 12:43 PM From; 05/08/2014 10;55 11314 P.01B/020

John,son, 51 A.3d 237, 245 (Pa. Super. Ct. 2012) appea.l denl:ed, 63 A.3d 1245 (Pa. 2013) (quoting Uni.ted States v. Cronic, 466 U.S. 648, 659 (1984»). A denial is complete "where counsel has entirely failed to function as the client's advocate." Johnson, 51 A.Sd 

### at 245. The Court believes that At.torney Zerega's briefing, review of Petitioner's correspondence.. and demonstrated professional judgment fall far short of a complete denial ofcounsel. 

### Refusingto Argue All Errors 011 

### Appeal Petitioner claims Attorney Zel'ega failed to argue 

### all errors complained ofin his correspondence. She testified that, in her opinion, those issues not raised either lacked merit or were better suited to 

### a PCRA petition for ineffective assistance. 

### In Pennsylvania, the PCRA provides the preferred means for addressing allegations of ineffective assistance ofcounsel. Com. v. Gmnt, 813 A,2d 726, 738 (pa. 2002). Even assuming some of the excised issues had merit, the use ofprofessional, legal judgment to effectuate concise, 

### 1.mderst.ancis.ble flJ'guments before appellate courts often perpetuates clients' best int.erests. 

### Om' Supreme 

### Co\.'tl't observes, {<the number ofclaims raised in a.n appeal is usually in inverse propOl'tion to their merit and t.hat a large number ofclaims raises the presumption that all are invalid." Com.


### u. Ellis, 626 A.2d 1137, 1140 (Pa. 1993); 

### see, e.g" Com. v. 1I1a.,Y, 898 A.2d 559, 584 n. 5 (Pa. 2006); Com. v. Williams, 782 A.2d 517, 536 (Pa. 2001). Consequently, Petitioner's arguments ill this re.gard fail the test for ineffectiveness.

J7Circulated 01/21/2015 12:43 PM Ffom: 05/06/2014 10:65 11314 P.019/020



### The Petition for Allowance ofAppeal We first note that there is no right to an allowance ofappeal by our Supreme Court. 

### Com. v, Liebel, 825 A,2d 630, 635 (Pa. 2003). However, where 

### "appellate counsel believes that the clol:ms that a.petitioner would rar:se in a PAA
.. , would not be completely frivolous, a petitioner certainly has a l'ight to file such a petibon," 

### Uebel, 8u,pra (emphasis added). 

### In other words, 

### for PORA purposes, 

### a PAA only becomes a 

### right uponcounsel'sjudgmentofits merit. Nevertheless, counsel's option not to file a frivolous PAA, does not absolve counsel's duty of consultation with the client. For that reason, there is merit to a 

### claim that counsel failed to 

### ad.vi.se a petitioner conee,rning a P

### AA. See Com, {J. 

### Gadsden, 832 A.2d 1082, 1088 (Pa. Super. Ct. 2003) (interpreting 

### Corn. u. 

### Liebel, 825 A.2d 630, 634 (Pa. 2003)). "When addressing this 

### claim, a PCRA court must consider whether counsel 

### adeqnately and 

### timely consulted with the petitioner before the filing deadline and whether counselIS failure 01' refusal to file a [PAAJ with the Pennsylvania Supreme Court was justified." 

### Gadsden, 832 A.2d at 1088 (emphasis original). Ms. Zerega's consultation with Petitioner's mother (lid occur 

### before expiration ofthe time in which to file a petition. That fact, along with her. explanation that, in her opinion, there was 110 merit to the petition, satisfies the Court that Counsel's actions were both timely andjustified, and therefore, effective. \iVheref 01'8, we will enter the following Order:

18Circulated 01/21/2015 12:43 PM From: 05/0812014 10:56

INTHE COURT OF COMMON PLEAS OF



### FAYETTE COUNTY, PENNSYLVANIA 11314 P.0201020



### COMM01\TWEALTH OF PENNSYLVANIA, CRIMINA.L ACTION CASE 

### NO. 133 OF 2009 

### v. ALBERTT. GREELEY, III, Defendant/Petiti.oner. JUDGE JOSEPHM. GEORGE, JR. 

### ORDER AND NOW, this 24th day of April, 2014, upon consideration of Petitioner's Amended Petition under the Post Conviction Relief Act and after hearing, the Petition is hereby DENIED.



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