J-S24019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIN LEIGH BERRY

                            Appellant                 No. 1021 WDA 2016


                Appeal from the PCRA Order Dated April 28, 2016
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0000846-2007


BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                              FILED JUNE 12, 2017

        Appellant Erin Leigh Berry appeals from the April 28, 2016 order of the

Court of Common Pleas of Allegheny County (“PCRA court”), which denied

without a hearing his request for collateral relief under the Post Conviction

Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The facts and procedural history underlying this case are undisputed.

As recounted by a prior panel of this Court on Appellant’s direct appeal:

               On October 26, 2006, at approximately 11:34 p.m.,
        Marquela Crosby was in an upstairs bedroom at her home
        located at Pennwood Avenue and South Avenue in the Borough
        of Wilkinsburg caring for her blind grandmother. On the first
        floor in the living room, Carlotta Carey, Marquela’s mother, was
        watching television along with Marrow Carey, Marquela’s uncle
        and Willie Williams, a family friend. Marrow Carey, in addition to
        watching television, was on the phone with his girlfriend, Toni
        Robinson, when there was a kick at the front door followed by a
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*
    Former Justice specially assigned to the Superior Court.
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     second kick which forced the door open and then three
     individuals ran into the residence all dressed in black with masks
     covering their faces, and all carrying a firearm. One of the
     individuals possessed a TEC-9 semi-automatic weapon with a
     banana clip, which he pointed at Marrow Carey. Marrow Carey
     put down the phone although he did not end the call that he had
     with his girlfriend. Toni Robinson heard the conversations that
     were taking place in the Carey home and concluded that a home
     invasion/robbery was taking place at which point she ended her
     phone call and made a 911 call to the Wilkinsburg Police advising
     them of the situation taking place at the Carey residence.

            During the course of this robbery, two of the three
     individuals went upstairs looking for property to take and were
     coming down the stairs when the police arrived at the scene.
     The Wilkinsburg Police station is approximately two and one-half
     blocks from the Carey residence. Seeing the police lights and
     hearing the sirens, the individuals decided to flee the residence
     and two went out the back door and one went out the front door
     almost running into the police. A chase ensued and during the
     course of that chase, that individual threw an object into another
     yard. This individual was not only being chased from the rear by
     a police officer, but also from the front. Realizing that he would
     not elude the police, he surrendered, was put to the ground,
     handcuffed and then searched. During the course of this search
     the police recovered a red cell phone, which was later identified
     as being Marquela Crosby’s phone. The individual apprehended
     by the police was subsequently identified as Erin Berry. Officer
     Ronald Waz of the Wilkinsburg Police Department, in watching
     [Appellant], saw him exit the Carey residence and attempt to
     outrun another Wilkinsburg police officer, also saw him toss an
     object and made a mental note as to where that object landed.
     During the subsequent search of that area, a TEC-9 semi-
     automatic with a banana clip was recovered together with an
     envelope that had the address of the Carey home on it. The
     other two individuals to these crimes were not apprehended.

Commonwealth v. Berry, No. 1489 WDA 2011, unpublished memorandum

at 1-2 (Pa. Super. filed February 26, 2014) (citations omitted), appeal

denied, 96 A.3d 1025 (Pa. 2014).

     Appellant was charged with one count of robbery (victim, Marquela

Crosby); one count of burglary, one count of carrying a firearm without a

license, persons not to possess firearms, possession of a weapon, possession




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of an instrument of crime with criminal intent, and five counts of recklessly

endangering another person (“REAP”).1

       A jury trial commenced on September 29, 2009, at which Appellant

was represented by Donna McClelland, Esq.        Following the trial, the jury

returned a partial verdict. The jury found Appellant not guilty of carrying a

firearm without a license, possession of a weapon and REAP with respect to

victim Willie Williams.2 The jury was hung on the remaining charges. The

trial court thereafter granted Appellant’s motion for judgment of acquittal as

to the possession of an instrument of crime and three REAP counts. The trial

court declared a mistrial on the remaining, undecided charges, i.e., robbery,

burglary, persons not to possess firearms, and REAP (victim, Marquela

Crosby).

       On September 14, 2010, a second jury trial commenced, at which

Appellant was represented by Joseph Horowitz, Esq. (“Second Trial

Counsel”). Following trial, Appellant was found guilty of robbery, burglary,

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1
 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3502(a), 6106(a)(1), 6105(a)(1), 907(b),
907(a), and 2705, respectively.
2
  The counts of carrying a firearm without a license and possession of a
weapon require that a defendant possess a firearm or other weapon
concealed upon his person. See 18 Pa.C.S.A. §§ 6106(a)(1) and 907(b).
In contrast, the offense of persons not to possess firearms does not include
an element of concealment. See 18 Pa.C.S.A. § 6105(a)(1); see also
Commonwealth v. Williams, 980 A.2d 667, 673-74 (Pa. Super. 2009)
(concluding that carrying a firearms without a license and persons not to
possess firearms do not merge for sentencing purposes), appeal denied,
990 A.2d 730 (Pa. 2010).



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and REAP. The charge of persons not to possess firearms was severed and

tried non-jury. The trial court ultimately found Appellant guilty of persons

not to possess firearms.

      On January 4, 2011, the trial court sentenced Appellant to 10 to 20

years’ incarceration for robbery, and 5 to 10 years’ incarceration for persons

not to possess firearms to run consecutively.      The trial court imposed no

additional penalty on the remaining convictions.

      Following sentencing, Christy Foreman, Esq., entered her appearance

on Appellant’s behalf. On January 14, 2011, Appellant filed a timely post-

sentence motion, challenging his sentence and raising claims of ineffective

assistance by Second Trial Counsel.     The motion also challenged the trial

court’s verdict relating to persons not to possess firearms, the voluntary

waiver of Appellant’s right to a jury trial on this count, and the sufficiency

and weight of the evidence underlying the convictions. On June 10, 2011,

the trial court held a hearing on Appellant’s post-sentence motion, following

which it granted in part and denied in part the motion. Specifically, the trial

court dismissed Appellant’s conviction for persons not to possess firearms.

The remaining sentence was vacated. The post-sentence motion was denied

in all other respects. On August 12, 2011, Appellant was resentenced to 10

to 20 years in prison for robbery and 3 to 6 years’ imprisonment for burglary

to run consecutively. Appellant timely appealed.

      On appeal, a prior panel of this Court affirmed Appellant’s judgment of

sentence, concluding, in part, that Appellant’s sufficiency of the evidence

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challenge was waived and that the verdict was not against the weight of the

evidence.    Our Supreme Court denied Appellant’s petition for allowance of

appeal.

      On July 25, 2015, Appellant pro se filed the instant PCRA petition. The

PCRA court appointed counsel, who, on December 21, 2015, filed an

amended petition, raising ineffective assistance of counsel claims.          In

particular, Appellant argued that the Second Trial Counsel was ineffective for

failing “to raise the issue of collateral estoppel or otherwise to object to the

Commonwealth’s re-litigation of the issue of [Appellant’s] possession of a

firearm.” Amended PCRA Petition, 12/21/15, at ¶ 15(a). Appellant argued

that the first jury acquitted him of carrying a firearm without a license and

possession of a weapon, and that his identification by the victim in the

second trial was tied solely and impermissibly to the fact that he possessed

a firearm.     Appellant also argued that the Second Trial Counsel was

ineffective for failing “to consult with [Appellant] such that [Appellant] could

make a knowing, intelligent, and voluntary decision to waive his right to a

trial by jury on the charge of person not to possess a firearm.”       Id. at ¶

15(b). On May 6, 2016, following a Pa.R.Crim.P. 907 notice, the PCRA court

denied Appellant relief for want of merit. Appellant timely appealed to this

Court.    The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.         Appellant complied.     In

response, the trial court issued a Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant raises two issues for our review:

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       [I.] Did Appellant’s [S]econd [T]rial [C]ounsel render ineffective
       assistance by failing to raise the issue of collateral estoppel or
       otherwise to object to the Commonwealth’s re-litigation of the
       issue of Appellant’s possession of a firearm before or during
       Appellant’s second jury trial?

       [II.] Did Appellant’s [S]econd [T]rial [C]ounsel render ineffective
       assistance by failing to consult with Appellant such that he could
       make a knowing, intelligent, and voluntary decision to waive his
       right to a trial by jury on the charge of [p]erson [n]ot to
       [p]ossess a [f]irearm [], or otherwise consult with Appellant
       regarding said charge?

Appellant’s Brief at 4.3

       At the outset, we note that Appellant’s second claim of ineffective

assistance of counsel is moot. As noted above, following Appellant’s filing of

a post-sentence motion, the trial court dismissed his conviction for persons

not to possess firearms.

       Appellant’s sole claim before us involves ineffective assistance of

counsel. A PCRA petitioner is entitled to relief if he pleads and proves that

prior counsel rendered ineffective assistance of counsel.         42 Pa.C.S.A.

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable

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3
  To the extent Appellant challenges the trial court’s decision not to hold an
evidentiary hearing on his PCRA petition, such challenge is waived because
Appellant failed to raise it in his Rule 1925(b) statement. Rule 1925
provides that issues that are not included in the Rule 1925(b) statement or
raised in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P.
1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.
1998), superseded by rule on other grounds as stated in Commonwealth v.
Burton, 973 A.2d 428, 430 (Pa. Super. 2009).



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basis for acting or failing to act; and (3) the petitioner suffered resulting

prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.

Super. 2015) (en banc).         “A petitioner must prove all three factors of the

“Pierce[4] test,” or the claim fails.” Id.

       Instantly, Appellant addresses only the reasonable basis prong of the

Pierce test in his brief, which is otherwise bereft of any discussion or

argument with respect to the arguable merit and prejudice prongs.            See

Appellant’s Brief at 14.       As we recently emphasized, “[a] petitioner must

prove all three factors of the Pierce test, or the [ineffectiveness] claim fails.

In addition, on appeal, a petitioner must adequately discuss all three

factors of the Pierce test, or the appellate court will reject the claim.”

Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86

A.3d at 804)). Thus, given Appellant’s failure to discuss the arguable merit

and prejudice prongs on appeal, we reject his ineffectiveness claim.

       Order affirmed.




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4
    Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




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