Com. v. Berry, E., Com. v. Berry, E. No. 1021 WDA 2016

In 2006 a masked three-person home invasion occurred; police arrived quickly and pursued suspects; Erin Berry was apprehended after being seen fleeing and tossing an object later recovered as a TEC-9 handgun and an envelope with the victims’ address.
Berry was initially tried in 2009 (trial counsel McClelland); jury acquitted on some counts, hung on others; a mistrial was declared for remaining charges.
A second jury trial in 2010 (Second Trial Counsel Horowitz) resulted in convictions for robbery, burglary, and recklessly endangering another person; a separate bench trial convicted Berry of persons not to possess firearms, later vacated.
Berry was sentenced to consecutive terms (ultimately 10–20 years for robbery and 3–6 years for burglary after resentencing); direct appeal and Pennsylvania Supreme Court review denied.
In 2015 Berry filed a pro se PCRA petition, amended to assert ineffective assistance of Second Trial Counsel for (1) failing to invoke collateral estoppel based on the first jury’s acquittals regarding firearm possession and (2) failing to consult about waiving a jury trial on the persons-not-to-possess-firearms count. The PCRA court denied relief without a hearing, and Berry appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Second Trial Counsel was ineffective for not raising collateral estoppel to bar re-litigation of firearm possession	Berry: first jury acquitted of carrying a firearm without a license and possession of a weapon, so Commonwealth should have been barred from relying on firearm possession to identify him	Commonwealth/State: re-litigation was permissible; issue not shown to be meritorious or prejudicial on PCRA review	Court: Claim rejected for failure to satisfy Pierce test; Berry failed to brief arguable merit and prejudice, so ineffectiveness claim fails
Whether Second Trial Counsel was ineffective for failing to consult about waiving jury trial on persons-not-to-possess-firearm charge	Berry: counsel failed to consult, so waiver may not have been knowing/voluntary	Commonwealth/State: claim moot because conviction for that count was later dismissed	Court: Moot — conviction dismissed; PCRA claim not considered further

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775 (Pa. Super. 2015) (explaining Pierce test and burden on PCRA petitioner to prove ineffectiveness)
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (establishing three-prong ineffective-assistance test)
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (requirement that issues be raised in Rule 1925(b) statement to avoid waiver)
Commonwealth v. Fears, 86 A.3d 795 (Pa. Super. 2014) (discussing appellate obligation to address all Pierce factors)
Commonwealth v. Williams, 980 A.2d 667 (Pa. Super. 2009) (distinguishing firearms possession offenses and merger/sentencing implications)