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[U] Commonwealth v. Berry

Superior Court of Pennsylvania

February 26, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
ERIN BERRY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence, August 12, 2011, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0000846-2007.

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Erin Berry appeals from the judgment of sentence entered on August 12, 2011, in the Court of Common Pleas of Allegheny County. We affirm.

The trial court has summarized the facts of this case as follows:

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 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 Berry[, ] 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.

Trial court opinion, 12/14/12 at 2-4.

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 weapon, possession of an instrument of crime with criminal intent, and five counts of recklessly endangering another person ("REAP").

A jury trial commenced on September 29, 2009, before the Honorable David R. Cashman; appellant was represented by Donna McClelland, Esq. A mistrial was declared due to the jury having brought in only a partial verdict. The jury found appellant not guilty as to the charges of carrying a firearm without a license, possession of a weapon, and of REAP (victim, Willie Williams). Thereafter, Judge Cashman granted a motion for judgment of acquittal as to the possession of instruments of crime, and as to three REAP counts (victims, Carlotta Carey, Marrow Carey, and Toni Robinson). The jury was hung on the remaining charges.

On September 14, 2010, a second jury trial commenced before Judge Cashman; Joseph Horowitz, Esq., represented appellant on the remaining charges. The jury returned a verdict of guilty as to the charges of robbery, burglary, and REAP (victim, Marquela Crosby). The charge of person not to possess a firearm was again tried non-jury, and Judge Cashman found appellant guilty. On January 4, 2011, appellant was sentenced to a period of incarceration of 10 to 20 years for robbery and a consecutive period of incarceration of 5 to 10 years for person not to possess a firearm; no further penalty was imposed at the remaining counts.

Thereafter, Christy Foreman, Esq., entered her appearance on appellant's behalf. On January 14, 2011, a timely post-sentence motion was filed on appellant's behalf. (Docket #19.) The motion challenged the sentence as excessive and challenged the effective assistance of trial counsel. The motion also challenged the court's verdict of person not to possess a firearm, argued that appellant had not voluntarily waived his right to a jury trial on this count, averred the verdicts were not supported by sufficient evidence, and raised a weight of the evidence claim. Following a hearing on June 10, 2011, Judge Cashman granted the motion in part and dismissed appellant's conviction for possession of a firearm prohibited; the remaining sentence was vacated. The motion was denied in all other respects. On August 12, 2011, appellant was sentenced to 10 to 20 years for robbery and a consecutive period of incarceration of 3 to 6 years for burglary.

A timely notice of appeal was filed on September 9, 2011. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), ...


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