J-S70021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ASHLEY MARIE EDMUNDS                       :
                                               :
                       Appellant               :   No. 1386 EDA 2018

             Appeal from the Judgment of Sentence April 11, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005384-2017


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 14, 2019

        Ashley Marie Edmunds appeals from the judgment of sentence entered

following her conviction for simple assault.1 Edmunds challenges the weight

of the evidence and argues that she was denied effective assistance of

counsel. As Edmunds has waived both issues, we affirm.

        Edmunds was found guilty of two counts of simple assault following a

non-jury trial that took place on November 30, 2017. At trial, the

Commonwealth presented evidence that on August 6, 2017, Edmunds went

to the home of her ex-boyfriend and accosted his girlfriend, with whom

Edmunds had been exchanging threatening and harassing voicemail and text

messages. Edmunds also assaulted her ex-boyfriend when he tried to

intervene. The girlfriend testified, as did Edmunds and Edmunds’ mother, who

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1   18 Pa.C.S.A. § 2701(a)(1).
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had driven Edmunds to the residence and entered when the fight was

underway. The Commonwealth introduced into evidence photographs of the

victims’ injuries and the damage Edmunds did to the girlfriend’s cell phone,

and Edmunds introduced photographs of her own injuries. Edmunds claimed

that the two victims ambushed her upon her entry, that she threw no punches,

and that she acted in self-defense. See Trial Court Opinion, filed June 19,

2018, at 5-9.

       Edmunds was represented at trial by the office of the public defender,

and was represented by private counsel at sentencing. The court sentenced

Edmonds on April 11, 2018, to one year of probation. Edmunds did not file a

post-sentence motion, but filed a timely notice of appeal.

       Edmunds raises the following issues:

       A. Whether [t]he verdict is against the weight of the evidence and
       that [Edmunds] should be granted a new trial?

       B. Whether [t]rial counsel was ineffective for failing to present
       character witnesses on behalf of [Edmunds]?

Edmunds’ Br. at 5.2

                             I. Weight of the Evidence

       Edmunds first argues that she should be granted a new trial because

the verdict was against the weight of the evidence. According to Edmunds,


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2 On January 24, 2019, we issued a per curiam order directing the trial court
to supplement the certified record with the notes of testimony of the
sentencing proceeding. We received a supplemental record, including the
transcript of sentencing, on February 5, 2019.

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her testimony, “if believed, would establish [Edmunds’] claim of self-defense.”

Edmunds’ Br. at 11. Edmunds also asserts that the Commonwealth failed to

rebut her testimony that she was attacked.

      Although Edmunds labels her claim as a challenge to the weight of the

evidence, Edmunds recites the standard for a review of the sufficiency of the

evidence. See Edmunds’ Br. at 3, 8, 9. We caution that challenges to the

weight and sufficiency of the evidence are separate and distinct claims, as the

former “concedes that the Commonwealth has produced sufficient evidence of

each element of the crime, but questions which evidence is to be believed.”

Commonwealth v. Kinney, 157 A.3d 968, 971 (Pa.Super.) (quoting

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.Super. 2006)), appeal

denied, 170 A.3d 971 (Pa. 2017). The claims are viewed under different

standards upon review, and, when successful, warrant different remedies. See

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000). Upon a

challenge to the weight of the evidence, we review whether the trial court

abused its discretion when deciding whether the verdict “shock’s one’s sense

of justice” because “certain facts are so clearly of greater weight.”

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

      In its Rule 1925(a) opinion, the trial court found Edmunds’ weight claim

to be waived, as she failed to raise it prior to filing her Rule 1925(b) statement.

See Pa.R.A.P. 1925(a), (b); Tr. Ct. Op. at 2. Edmunds does not address the

trial court’s finding of waiver, and our own review of the record reveals that

Edmunds did not raise this issue prior to the appeal, either orally or by written

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motion. See Pa.R.Crim.P. 607(A). Thus, we agree that it is waived. See

Pa.R.A.P. 302(a); Kinney, 157 A.3d at 972.

        We also note that Edmunds’ argument that the Commonwealth failed to

present any evidence to rebut her version of the events goes to the sufficiency

of the evidence, which has not been raised on appeal. It nonetheless has no

merit, as the Commonwealth presented testimony that Edmunds was the

aggressor. See Tr. Ct. Op. at 3-9.

                     II. Ineffective Assistance of Counsel

        In Edmunds’ second issue, she argues that counsel was ineffective for

failing to present character witnesses in her defense, as she had no prior

criminal convictions. Edmunds’ Br. at 12-13. In its Rule 1925(a) opinion, the

court explained that the ineffectiveness claim is premature. Tr. Ct. Op. at 2-

3. Edmunds makes no response to this assessment.

        Although a defendant should generally wait until collateral review under

the Post Conviction Relief Act (“PCRA”)3 to raise claims of ineffective

assistance of counsel, three exceptions to that rule have been established

which allow a trial court the discretion to immediately entertain ineffectiveness

claims. Commonwealth v. Delgros, 183 A.3d 352, 358, 360-61 (Pa. 2018).4
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3   See 42 Pa.C.S.A. §§ 9541-9546.

4 The first exception applies under “extraordinary circumstances where a
discrete claim of trial counsel ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration best serves the
interests of justice.” Delgros, 183 A.3d at 360 (citing Commonwealth v.



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       However, despite the ability of a trial court to decide ineffectiveness

claims in those limited instances in which an exception applies, we have found

no authority allowing for appellate review of an ineffectiveness claim when the

defendant has failed to raise it before the trial court in the first instance.

Rather, our Supreme Court has repeatedly emphasized the importance of

allowing meaningful consideration of an ineffectiveness claim prior to

appellate review. In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), the

case in which the Court announced the general deferral rule, the Court

observed that appellate review is impractical without an adequate record in

the court below. See Delgros, 183 A.3d at 358. In Holmes, the Court

established the first two exceptions to the Grant Rule, allowing trial courts

the discretion to entertain ineffectiveness clams prior to collateral review when

an exception applies. See Delgros, 183 A.3d at 360-61; see also Holmes,

79 A.3d at 576 (stating, “unitary review effectively advances a PCRA attack

to the post-verdict stage” (emphasis added)). In Delgros, the Court

announced the third exception, and again directed its application to trial

courts. Id. at 361.


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Holmes, 79 A.3d 562, 563 (Pa. 2013)). The second exception is applicable
where “there is good cause shown and the defendant knowingly and expressly
waives his entitlement to seek subsequent PCRA review of his conviction and
sentence.” Id. (citing Holmes, 79 A.3d at 564). The third exception requires
trial courts to entertain ineffectiveness claims “where the defendant is
statutorily precluded from obtaining subsequent PCRA review.” Id. at 361.



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     Here, Edmunds never raised the ineffectiveness issue before the trial

court. We therefore conclude that Edmunds has waived the issue for review

at this time, and dismiss the claim without prejudice. Given our disposition,

we need not consider the trial court’s assessment of whether its immediate

review of the claim would have been appropriate in these circumstances.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/19




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