J-S31037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellee

                      v.

TYREE VINCE CURRY-BERRY

                           Appellant                       No. 1179 MDA 2014


           Appeal from the Judgment of Sentence of July 2, 2014
             In the Court of Common Pleas of Lebanon County
             Criminal Division at No: CP-38-CR-0001360-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

JUDGMENT ORDER BY WECHT, J.:                                FILED JULY 10, 2015

      Tyree Curry-Berry appeals the July 2, 2014 judgment of sentence. We

affirm.

      Following   a   jury   trial,    Curry-Berry   was   convicted   of   burglary,

conspiracy to commit burglary, conspiracy to commit trespass, and two

counts of conspiracy to commit theft by unlawful taking based upon his

involvement in the breaking into a residence with two other individuals and

stealing jewelry and firearms.        On July 2, 2014, the trial court sentenced

Curry-Berry to an aggregate term of two to seven years’ incarceration.

      On July 8, 2014, Curry-Berry filed a notice of appeal. In response, the

trial court directed Curry-Berry to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Curry-Berry timely
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filed a concise statement. On September 8, 2014, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a).

       In this appeal, Curry-Berry presents the following issues for our

review:

       1. Whether [Curry-Berry] was denied a fair trial when his trial
          counsel was ineffective for:

          A. Failing to file [Pa.R.Crim.P. 600] motions on [Curry-
             Berry’s] behalf seeking nominal bail; and

          B. Failing to adequately meet with [Curry-Berry] in order
             to prepare for trial so as to effectively prepare for the
             cross-examining of witnesses.

Brief for Curry-Berry at 4.

       Both of Curry-Berry’s issues involve claims of ineffective assistance of

counsel (“IAC”). Pursuant to the current state of our law, these claims are

not cognizable on direct appeal.          Rather, they must be raised in the first

instance in a subsequent Post Conviction Relief Act (“PCRA”) petition. 1        In

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

considered “the reviewability of claims of IAC on direct appeal.” Id. at 563.

Following a comprehensive review of the language codified in the PCRA and

decisions from our courts, the Court reaffirmed the principle that IAC claims

must be deferred until collateral review, and, thus are not reviewable on

direct appeal.     Id. at 563, 564.      The Court crafted two exceptions to this

____________________________________________


1
       See 42 Pa.C.S. §§ 9541-46.



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general proscription. Id. First, the Court held that a trial court may, in its

discretion, entertain IAC claims where extraordinary circumstances exist

such that review of the claim would best serve the interests of justice. Id.

at 564, 579-80.     Second, the Court reposed discretion in trial courts to

review IAC claims during post-sentence motions only if there is good cause

shown, and the unitary review so indulged is preceded by the defendant’s

knowing and express waiver of his or her entitlement to seek PCRA review

from his or her conviction and sentence, including an express recognition

that the waiver subjects further collateral review to the time and serial

restrictions of the PCRA. Id. at 563, 580.

      There is no indication in the record that extraordinary circumstances

exist in this case such that Curry-Berry’s IAC claims warrant review on direct

appeal or that Curry-Berry expressly waived his right to PCRA review.

Consequently, in light of Holmes, Curry-Berry’s claims of ineffective

assistance of counsel are not cognizable in this direct appeal.

      Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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