Com. v. Greeley (memorandum)

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J-S63026-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. ALBERT THEODORE GREELEY, III, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 410 WDA 2012 Appeal from the Judgment of Sentence entered on October 31, 2011 in the Court of Common Pleas of Fayette County, Criminal Division, No. CP-26-CR-0000133-2009 BEFORE: STEVENS, P.J., MUSMANNO and ALLEN, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: February 21, 2013 Albert Theodore Greeley, III, ( Greeley ) appeals from the judgment of sentence imposed following his convictions of possession with intent to deliver a controlled substance and possession of a small amount of marijuana. See 35 P.S. § 780-113(a)(30), (31). Greeley also pled guilty to a summary offense of drivers required to be licensed. See 75 Pa.C.S.A. § 1501(a). We affirm. The trial court has set forth the relevant underlying facts, which we adopt for the purpose of this appeal. See Trial Court Opinion, 6/5/12, at 1- J-S63026-12 5.1 On appeal, Greeley raises the following questions for our review: 1. Did the Commonwealth present insufficient evidence to support the intent to deliver and possession of a controlled substance charges; in that the Commonwealth failed to establish [that Greeley] was aware there were drugs in the vehicle, and the drugs were in [Greeley s] possession and control as the vehicle was not owned by [Greeley]? 2. Did the Commonwealth present insufficient evidence to support the intent to delive[r] charge, in that there was no indicia that [Greeley] had sold drugs or the quantity was not enough to support the charge? 3. Did the mistrial related mistrial trial court err when the court denied the request for a based on the testimony presented by the officer to funds forfeited, when at the previous trial[,] a was granted for the same testimony? Brief for Appellant at 4 (capitalization omitted, issues re-ordered). In his first claim, Greeley contends that the evidence was insufficient to support his convictions. Id. at 6. Greeley argues that the Commonwealth did not show that he had constructive possession of the cocaine found in a bag in a car that was owned by a third party. Id. at 8. Greeley asserts that there was no evidence that he knew or had reason to know about the drugs. Id. In his second claim, Greeley further contends 1 We note that Greeley, in his Statement of the Case, indicates that this Court affirmed his judgment of sentence in 2009, and that the Supreme Court of Pennsylvania denied allowance of appeal in 2010. Brief for Appellant at 3. Greeley further states that he filed a petition for relief pursuant to the Post Conviction Relief Act, which was denied. Id. However, a review of the docket does not support this recitation. Indeed, Greeley was not sentenced in this case until October 31, 2011. We further note that Greeley s initial trial, in August 2010, resulted in a mistrial. -2- J-S63026-12 that there was no evidence that he sold drugs or that the quantity of drugs found demonstrates he had an intent to deliver the drugs. Id. at 6.2 The trial court has set forth the relevant law, addressed Greeley s claims and determined that they are without merit. See Trial Court Opinion, 6/5/12, at 7-14; see also Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003) (rejecting appellant s argument that he did not constructively possess drugs found in a vehicle that he did not own because the evidence established that appellant drove the vehicle in question, possessed the keys to the vehicle, and the drugs were found in the vehicle). Accordingly, we adopt the sound reasoning of the trial court for the purpose of this appeal. See Trial Court Opinion, 6/5/12, at 7-14. In his third claim, Greeley contends that the trial court erred in denying his request for a mistrial based upon the testimony of Trooper Charles Morrison. Brief for Appellant at 9. Greeley argues that Trooper Morrison s testimony that the money seized in the case had been forfeited suggested that Greeley had the money for an illegal purpose. Id. Greeley points out that the Commonwealth sought a curative instruction following this testimony, but that the instruction was insufficient to eliminate the prejudice of the testimony. Id. Greeley admits that a motion for a mistrial was never made by counsel. Id. 2 Greeley has not set forth any pertinent analysis or citation to case law to support this claim. See Pa.R.A.P. 2119(a). Indeed, Greeley s only argument consists of a restatement of his Statement of Questions Presented. -3- J-S63026-12 Here, the trial court has addressed this claim and determined that Greeley failed to raise a motion for a mistrial. See Trial Court Opinion, 6/5/12, at 6-7; see also Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (stating that failure to request a mistrial is sufficient to constitute waiver of the claim). We adopt the sound reasoning of the trial court for the purpose of this appeal and conclude that Greeley s claim is waived on appeal. See Trial Court Opinion, 6/5/12, at 6-7. Judgment of sentence affirmed. -4-

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