Com. v. Greeley, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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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.
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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.-4-
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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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