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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: 2/11/2015
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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 JOSEPH M. GEORGE, JR. 

ATTORNEYS AND LAW FIRMS 

Anthony S. Iannamorelli, Jr., Esquire, Assistant. District Attorney, For the 

Commonwealth 

Herbert A. Terrell, Esquire, For the Defendant! Petitioner 

OPINION AND 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 of his 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 of his guilt 01' innocence could 

have taken place because trial counsel: 

a. Elected not to call. all fact witnesses; 
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b. Accepted the trial court's curative instruction, rather than making a 

motion for mistrial whenl 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 of Petitioner's arrest; 

d. Failed to object to t118 Commonwealth's quali.fied expert testimony on 

amounts of monoy and drugs as indicators of Petitioner's intent, when 

no related expert report was provided 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 taken place 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 of Pennsylvania. 

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). 

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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 caserela ted 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 nunc pro 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 and his trial and appellate counsel.. 

;I The 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 Peti tionol"s claim laclte merit. 

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brief on Jantuou'y 24, 2012. Petitioner contends that Attorney Zerega was ineffective 

in her preparation and execution of his 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 P A"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 instant Amended Petition on October 16, 2013. 

DISCUSSION 

Standard of Revi.ew 

To be eligible for relief uuder the peRA, Petitioner must plead and prove by a 

preponderance of the evidence 

[tJhat the [challenged] conviction or sentence resulted 

from one 01' more of the 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 For jUl'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). 

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determining process 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 if it had been introduced. 

(vii) The irnposition of a sentence greater than the 

lawful maximum. 

(viii) A proceeding in a tribunal without jurisdiction. 

42 Pa.C.S. § 9543. 

#::114 P.006/020 

The ineffective assistance delineated m § 9543 encompasses "all 

constitutionally-cognizable claims of ineffective assistance of counsel, i.e., all claims 

that the petitioner was depl'ived of his or her Sixth Amendment6 and Article I, 

Q United Stat.es Constitution 

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Section 97 rights 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 of the test for ineffectiveness will require rejection of the 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) (internal citation. and quotation omitted); see Com. 

7 PEll1mlYlvRnia Constitution 

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u. Howard, 645 A.2d 1300, 1307 (Pa, 1994) (clarifying that, in the context of 

prejudice, "reasonable probability" should not be 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 of post-conviction relief may be affirmed if it is "supported 

by the evidence of record 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 Fact Witnesses 

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. Iannetti ineffective. 

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 

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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 in payments for 

his child's private schooling. Ms. Sykes testified on cross-examination that 

Petitioner's only job 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 of her 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 

of the $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 of her 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). 

10 See SJIpro note 9. 

11 "cocai.ne. crack. whatever .... " 

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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 of the opinion 

that Ms. Silbaugh's testimony 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 all prongs of the in0ffectiveness test. 

"Porfeiture," No Motion for 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 of the test for 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 

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instruction results in waiver of that issue. Com, v. Brown, 359 A.2d 398, 396 (Pa. 

1976). 

A motion for mistrial is 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 "the jury 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 of all the circUll1stanees," Com. v, Morrl:s, 519 A.2d. 374,377 cPa, 1986). 

The specific exchange giving rise 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 

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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 of the 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 to judge Petitioner's guilt. Considering those facts, we cannot say that 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 of conduct. 

Failure to Object to the ConmlOnwealth's DemoIlstx'ative Evidence 

The only evidence available for trial of the money seized during Petitioner's 

arrest was an authenticated photograph of the 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 admitted into 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 of prej\.\dicC;l. (See N.T., Aug. 5, 2010, p. 28-29). 

!:) A common packaging method known 8S "a seack" in the dnlg trade 

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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 Expert rrestimony 

The Commonwealth presented the expert opinion testimony of PSP C011,)Ol'al 

Dennis Ulery. As is often the case, Corporal Ulery testified that the amounts of cash 

,and controlled subst.ances, marijuana and cocaine H>, 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) 

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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 

discretionary provisioris for pretrial discovery. 

Mandatol'Y. In all court cases, on request 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) 

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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 of the 

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's possession. 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 the jury, the objective is to explain to the jury 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 of the 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. 

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The Advisory Committee note to the particular instruction Appellant faults 

Mr. Iannetti for not requesting, states, "therE! is a danger that jurors 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 witnessesl8 ... 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 of factors, not elements. 

For example, quantity of a drug possessed can be dispositive of the intent. See 

Com. v. Ratsal71.y, 934 A. 2d 1233, 1237 (Fa. 2007). 

[I]f the quant-it-yI9 of the 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 it for 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, that is not. the case hel'e. 

15 
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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 of the noted factors, 

indcpendent of the need for expert opinion. 'rhe trial court's instructions also show 

due acknowledgment of those factors. (See N.T., Oct. 5,2011, pp. 75·76). 

2. Alillellfite CotLU&Ell 

No Direct Contact with 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 of personal contact and that either letters or 

telephone conversations, and review of the l:ecord, often provide sufficient bases 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 her judgment, those letters, along with her review of the record, were 

sufficient. Ms. Zel'ega elected not to include all matters complained of in 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 

expert jury inBtruction 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 result is a '''complete denial of cou1l8el.'" Corn. u, 

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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 of counsel. 

Refusing to Argue All Errors 011 Appeal 

Petitioner claims Attorney Zel'ega failed to argue all errors complained of in 

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 of counsel. Com. v. Gmnt, 813 A,2d 726, 738 (pa. 2002). 

Even assuming some of the excised issues had merit, the use of professional, 

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 of claims raised in a.n appeal is usually in inverse propOl'tion to their merit 

and t.hat a large number of claims 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. 

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The Petition for Allowance of Appeal 

We first note that there is no right to an allowance of appeal 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'igh t to file such a petibon ," 

Uebel, 8u,pra (emphasis added). In other words, for PORA purposes, a P AA only 

becomes a right upon counsel's judgment of its merit. 

Nevertheless, counsel's option not to file a frivolous P AA, 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 counsel IS failure 01' refusal to file a [P AAJ 

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 

of the 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 and justified, and therefore, effective. 

\iVhe ref 01'8 , we will enter the following Order: 

18 
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IN THE COURT OF COMMON PLEAS OF 

FAYETTE COUNTY, PENNSYLVANIA 

11314 P.0201020 

COMM01\TWEALTH OF PENNSYLVANIA, CRIMINA.L ACTION 

v. CASE NO. 133 OF 2009 

ALBERT T. GREELEY, III, 

Defendant/Petiti.oner. JUDGE JOSEPH M. 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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