J-S76040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    DERRICK EDMUNDS,

                             Appellant                   No. 2405 EDA 2016


                   Appeal from the PCRA Order June 23, 2016
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0000066-2007
                            CP-51-CR-0801971-2006


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED MARCH 14, 2018

        Appellant, Derrick Edmunds, appeals from the order denying his petition

for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541–9546. Appellant claims his trial counsel was ineffective for failure to

preserve a challenge to the weight of the evidence. We affirm.

        This case has a long history but there is only one issue in this appeal.

The underlying facts are not in substantial dispute.        Acting with a cohort,

Appellant fatally shot Jason Bryan and wounded Kevin Robertson. He gave an

inculpatory statement to the police.           He was tried jointly with the co-


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*   Retired Senior Judge assigned to the Superior Court.
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defendant, Eric Bundy, before a jury.1 The Honorable Renee Cardwell Hughes

presided. The jury convicted him of murder of the first degree and related

charges.

         On December 15, 2008, the court sentenced Appellant to a term of life

imprisonment without the possibility of parole for the murder, followed by a

consecutive term of not less than twelve nor more than twenty-four years of

imprisonment on the remaining charges. This Court affirmed the judgment of

sentence, and our Supreme Court denied allowance of appeal.              (See

Commonwealth v. Edmunds, 998 A.2d 1011 (Pa. Super. filed April 16,

2010) (unpublished memorandum), appeal denied, 9 A.3d 627 (Pa. 2010)).

         On June 13, 2011, Appellant filed a PCRA petition, which, as amended,

assigned error to trial counsel’s failure to request a “no adverse inference”

instruction,2 or to challenge the weight of the evidence, and requested a new

trial.   On December 17, 2014, the PCRA court granted a new trial on the

adverse inference claim.



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1 In a related case, a panel of this Court has affirmed the dismissal of co-
defendant Eric Bundy’s PCRA petition without a hearing.                 See
Commonwealth v. Bundy, No. 2439 EDA 2015, unpublished memorandum
at *1 (Pa. Super. filed June 21, 2017).

2 The instruction directs the jury not to draw an adverse inference from a
defendant’s decision not to testify. See e.g., Commonwealth v. Hall, 701
A.2d 190, 199 (Pa. 1997), cert. denied, 523 U.S. 1082 (1998).




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       On December 1, 2015, this Court vacated the order granting PCRA relief

for trial counsel’s failure to request a “no adverse inference” instruction to the

jury. (See Commonwealth v. Edmunds, No. 189 EDA 2015, unpublished

memorandum at *6 (Pa. Super. filed Dec. 1, 2015), appeal denied, 138 A.3d

2 (Pa. 2016)). This Court also remanded with instructions to the PCRA court

to dispose of Appellant’s remaining weight/ineffectiveness claim.3

       On remand, the PCRA court dismissed the weight/ineffectiveness claim.

This timely appeal followed.4

       Appellant presents one question for our review:

             Did the PCRA [c]ourt err when it failed to grant a new trial
       upon the claim that trial counsel was ineffective for failing to
       preserve the issue of the weight of the evidence, where same was
       an issue of arguable merit?

(Appellant’s Brief, at 3).

              This Court analyzes PCRA appeals in the light most favorable
       to the prevailing party at the PCRA level. Our review is limited to
       the findings of the PCRA court and the evidence of record and we
       do not disturb a PCRA court’s ruling if it is supported by evidence
       of record and is free of legal error. Similarly, we grant great
       deference to the factual findings of the PCRA court and will not
       disturb those findings unless they have no support in the record.
       However, we afford no such deference to its legal conclusions.
       Where the petitioner raises questions of law, our standard of
       review is de novo and our scope of review is plenary. Finally, we
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3The panel did note that the PCRA court stated at the PCRA hearing that it
agreed with the Commonwealth’s assertion that “as to the weight of the
evidence it’s clear that that argument is denied.” (Edmunds, filed Dec. 1,
2015, supra at *6 n.4 (citing N.T. Hearing, 12/17/14, at 3)).

4 The PCRA court did not request a statement of errors. It filed an opinion on
January 18, 2017. See Pa.R.A.P. 1925.

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      may affirm a PCRA court’s decision on any grounds if the record
      supports it.

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015), appeal

denied, 141 A.3d 479 (Pa. 2016) (citations omitted).

      To be eligible for PCRA relief, the petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated circumstances found in Section 9543(a)(2),

which includes the ineffective assistance of counsel.      See 42 Pa.C.S.A.

§ 9543(a)(2)(i)-(iii).

      “It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel’s

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citing Strickland

v. Washington, 466 U.S. 668, 687–91 (1984)).

      To prevail on an ineffectiveness claim, the petitioner has the burden to

prove that “(1) the underlying substantive claim has arguable merit; (2)

counsel whose effectiveness is being challenged did not have a reasonable

basis for his or her actions or failure to act; and (3) the petitioner suffered

prejudice as a result of counsel’s deficient performance.” Commonwealth v.

Sneed, 45 A.3d 1096, 1106 (Pa. 2012) (citing Commonwealth v. Pierce,

786 A.2d 203, 213 (Pa. 2001)). The failure to satisfy any one of the prongs

will cause the entire claim to fail. See id.




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       Here, Appellant claims that trial counsel was ineffective because she

failed to present a weight claim, which he maintains had arguable merit, and

would have led to relief if it had been litigated. We disagree.

       Appellant utterly fails to prove by a preponderance of the evidence (or

otherwise) that his purported weight claim has arguable merit. His assertion

of arguable merit consists of nothing more than the self-serving declaration

that he had no time to “engage[ ] in premeditation.”5 (Appellant’s Brief, at

12). He admits shooting at the vehicle which resulted in the murder of the

victim.

       More substantively, Appellant’s weight claim merely resurrects his

previously litigated challenges to the sufficiency (and the weight) of the

evidence.     (See Appellant’s Brief, at 14; see also Commonwealth v.

Edmunds, CP–51–CR–0000066–2007 (CCP Philadelphia, filed August 6,

2008), affirmed, 998 A.2d 1011 (Pa. Super. filed April 16, 2010) (unpublished

memorandum); appeal denied, 9 A.3d 627 (Pa. 2010)).

       Appellant’s claim was previously litigated and lacks arguable merit.

Therefore, his claim of ineffectiveness must likewise fail.

       Order affirmed.


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5 Moreover he miscites Commonwealth v. Drum, 58 Pa. 9, 16 (1868), as
having been decided in 1968. (See Appellant’s Brief, at 13); see also Drum,
supra at 16 (“It is equally true both in fact and from experience, that no time
is too short for a wicked man to frame in his mind his scheme of murder, and
to contrive the means of accomplishing it.”). (emphasis in original).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/18




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