J-S30022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    ASHLEY REBECCA JANE STUMPF

                             Appellant               No. 1460 WDA 2017


       Appeal from the Judgment of Sentence imposed September 5, 2017
            In the Court of Common Pleas of Westmoreland County
                Criminal Division at No: CP-65-CR-0004316-2009;
                             CP-65-CR-0004608-2009


BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 21, 2018

        Appellant, Ashley Rebecca Jane Stumpf, appeals from the judgment of

sentence the Court of Common Pleas of Westmoreland County imposed on

September 5, 2017. For the reasons explained below, we affirm.

        The underlying facts are not at issue here.        Procedurally, following

multiple revocations of Appellant’s parole and/or probation, on November 16,

2015, the trial court eventually sentenced Appellant to 2.5 years of State

Intermediate Punishment (“SIP”) at docket number 4608-2009, and a

consecutive 2.5 years of SIP at docket number 4316-2009. On September 5,



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*   Retired Senior Judge assigned to the Superior Court.
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2017, following a report of another violation,1 the trial court held a revocation

hearing.    After hearing the evidence, the court revoked Appellant’s SIP

sentences, and sentenced her to an aggregate period of incarceration of five

to ten years, with a 10-year term of probation.

       On appeal, Appellant argues that trial counsel provided ineffective

assistance at the hearing for revocation of her SIP sentences. Specifically,

Appellant argues that counsel was ineffective because he failed to call a

witness.2    For the reasons stated below, Appellant is entitled to no relief.

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

Court reiterated the general rule that claims focusing on counsel’s
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1 On July 5, 2017, the trial court was notified that Appellant had been expelled
from the SIP program “due to lack of meaningful participation.” N.T.
Revocation Hearing, at 2.

2 In the questions presented for our review, Appellant also argues the
Commonwealth’s evidence at the revocation hearing was insufficient to prove
“the charge of violation of parole beyond a reasonable doubt.” Appellant’s
Brief at 11. Appellant did not raise the sufficiency issue in her Pa. R.A.P. Rule
1925(b) statement, raising it for the first time on appeal. The claim is,
therefore, waived. See, e.g., Pa. R.A.P. 302(a). In passing, we note that the
Rule 1925(b) statement, which Appellant identified as “Defendants Exceptions
in Support of Appeal,” is not in the trial court record forwarded to us.
Appellant, however, included a copy of the statement in her reproduced
record.

In any event, even if we were to address it, Appellant appears confused about
the quantum of proof needed at a revocation hearing. It is not a “beyond a
reasonable doubt” standard that the Commonwealth must meet. Rather, it is
preponderance of the evidence standard. See, e.g., Commonwealth v.
Kalichak, 43 A.2d 285, 291 (Pa. Super. 2008). The claim, therefore, is based
on a major misapprehension of the law, which substantially undermines its
merits, if any.



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performance      presumptively      should     await   collateral   review,   with   two

exceptions:

       First, we appreciate that there may be extraordinary
       circumstances where a discrete claim (or claims) of trial counsel
       ineffectiveness is apparent from the record and meritorious to the
       extent that immediate consideration best serves the interests of
       justice; and we hold that trial courts retain their discretion to
       entertain such claims.

       ....

       Second, with respect to other cases and claims, including cases
       such as Bomar[3] and the matter sub judice, where the defendant
       seeks to litigate multiple or prolix claims of counsel
       ineffectiveness, including non-record-based claims, on post-
       verdict motions and direct appeal, we repose discretion in the trial
       courts to entertain such claims, but only if (1) there is good cause
       shown, and (2) the unitary review so indulged is preceded by the
       defendant’s knowing and express waiver of his entitlement to seek
       PCRA review from his conviction and sentence, including an
       express recognition that the waiver subjects further collateral
       review to the time and serial petition restrictions of the PCRA. In
       other words, we adopt a paradigm whereby unitary review may
       be available in such cases only to the extent that it advances (and
       exhausts) PCRA review in time; unlike the so-called Bomar
       exception, unitary review would not be made available as an
       accelerated, extra round of collateral attack as of right. . . . This
       exception follows from the suggestions of prior Court majorities
       respecting review of prolix claims, if accompanied by a waiver of
       PCRA review.

Holmes, 79 A.3d at 563-64 (footnotes omitted).

       Thus, under Holmes, claims of ineffective assistance of counsel (“IAC”)

may be reviewed by a trial court if (i) the ineffectiveness is apparent from the

record and meritorious such that immediate consideration best serves the

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3   Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).

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interests of justice or (ii) if (1) there is good cause shown, and (2) the unitary

review so indulged is preceded by the defendant’s knowing and express waiver

of his entitlement to seek PCRA review from his conviction and sentence.

Despite the clear dictate of Holmes, Appellant provides no explanation why

she would be entitled to a review of her IAC claims on direct appeal. Indeed,

Appellant nowhere mentions Holmes or its test. Because Appellant failed to

explain why she is entitled to a review of her IAC claim on direct appeal, we

will not review her IAC claim at this stage.     Commonwealth v. Britt, 83

A.3d 198, 204 (Pa. Super. 2013) (appellant cannot seek review of

ineffectiveness claim on direct appeal, “as it involves non-record-based

claims, nor has Appellant waived PCRA review”). Accordingly, we must affirm

the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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