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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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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