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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-S31037-15
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.
-2-
J-S31037-15
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
-3-
Com. v. Curry-Berry, T.
Combined Opinion