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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-S76018-14
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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J-S76018-14
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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J-S76018-14
“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-
J-S76018-14
(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,
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 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 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).
2
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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 case-
rela 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.
3
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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·
5For 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).
4
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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.
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 Amendment 6 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 witnesses 9 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 seized 10 , 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 cross-
examination 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, 7 t 17 (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).
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).
11The 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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Ffom:
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 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 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.
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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, {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 PAA 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 [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
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 ref01'8 , we will enter the following Order:
18
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IN THE COURT OF COMMON PLEAS OF
FAYETTE COUNTY, PENNSYLVANIA
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.
JOSEPHM. GE .lE, JR.
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