Com. v. Ramos, J. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN RAMOS, : No. 1016 EDA 2016
:
Appellant :
Appeal from the PCRA Order, March 4, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-1001391-2005
BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2018
John Ramos appeals from the March 4, 2016 order entered in the
Court of Common Pleas of Philadelphia County that dismissed, without a
hearing, his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court set forth the following:
On December 8, 2006, after a jury trial before
Judge Renee Cardwell Hughes, [appellant] was found
guilty of rape, aggravated indecent assault,
corruption of the morals of a minor and unlawful
contact with a minor.[1] On July 27, 2007, following
a Megan’s Law hearing, [appellant] was found to be
a sexually violent predator. Also on July 27, 2007,
Judge Hughes sentenced [appellant] to an aggregate
term of twenty (20) to forty (40) years of
imprisonment followed by fifteen (15) years of
probation [Appellant] filed pro se a post-sentence
1 18 Pa.C.S.A. §§ 3121, 3125, 6301, and 6318, respectively.
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motion for reconsideration of sentence; it was denied
on August 9, 2007. [Appellant] filed a notice of
appeal, and on September 22, 2008, [appellant’s]
judgments of sentence were affirmed by the
Pennsylvania Superior Court. On February 27, 2009,
[appellant’s] petition for allowance of appeal was
denied by our Supreme Court.
On December 11, 2009, [appellant] timely filed a
pro se PCRA petition. David Rudenstein, Esquire,
was subsequently appointed to represent
[appellant], and on May 30, 2012, counsel filed an
Amended PCRA Petition on [appellant’s] behalf. On
November 16, 2012, this court issued a notice of its
intention to dismiss [appellant’s] Amended PCRA
Petition without a hearing pursuant to
Pa.R.Crim.P. 907. On December 12, 2012,
[appellant] filed a pro se response to this court’s
907 notice, arguing, inter alia, that his PCRA
counsel was ineffective for failing to raise one of
[appellant’s] claims in the Amended Petition. On
December 27, 2012, after conducting a review of the
record, this court dismissed [appellant’s] Amended
Petition without a hearing.
On January 9, 2013, [appellant] timely filed a pro se
notice of appeal of this court’s dismissal of his PCRA
Petition to the Pennsylvania Superior Court, and on
January 11, 2013, [appellant] filed pro se an
unsolicited “1925(b) Statement of Matters
Complained of Appeal.” On January 22, 2013,
[appellant’s] PCRA counsel also filed an unsolicited
“Statement of Matters Complained of Pursuant to
Rule of Appellate Procedure 1925(b)”; counsel
omitted from the statement a specific claim of
ineffectiveness of [appellant’s] trial counsel which
[appellant] sought to pursue.[Footnote 4] On May 2,
2014, the Superior Court remanded the matter to
this court with an instruction to address [appellant’s]
claim that his PCRA counsel should have raised the
issue of his trial counsel’s ineffectiveness for failing
to object to the Commonwealth’s introduction of a
child services report [“CSR”] into evidence. The
Superior Court also instructed this court to conduct a
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hearing pursuant to Commonwealth v. Grazier,
552 Pa. 9, 713 A.2d 81 (1998), to determine if
[appellant], in fact, sought to represent himself in
pursuing his PCRA claim or desired appointment of
counsel.
[Footnote 4] As noted by our Superior
Court, although [appellant] raised the
challenge properly in his pro se 1925(b)
Statement of Matters Complained of on
Appeal, the claim was procedurally
problematic “due to the obvious problem
that PCRA counsel was still counsel of
record.” Commonwealth v. Ramos,
308 EDA 2013, [] (Pa.Super. May 2,
2014).
On May 23, 2014, following a Grazier hearing,
[appellant] elected to be represented by appointed
counsel on remand. J. Matthew Wolfe, Esquire, was
thereafter appointed to represent [appellant]. On
September 19, 2014, counsel filed an Amended
PCRA Petition on [appellant’s] behalf.[Footnote 5]
On January 16, 2015, counsel filed a Second
Amended PCRA Petition.[Footnote 6] On June 22,
2015, counsel filed [appellant’s] Third Amended
PCRA Petition. On July 1, 2015, [appellant] filed
pro se an “Amended PCRA to Supplement First
Timely Filed PCRA.” On August 19, 2015, counsel
filed a Fourth Amended PCRA Petition on
[appellant’s] behalf. On November 3, 2015, the
Commonwealth filed a Motion to Dismiss.
[Footnote 5] On October 20, 2014,
[appellant] filed a “Motion for
Appointment of [a] New PCRA Counsel”
in which he argued that his
newly-appointed PCRA counsel failed to
include [appellant’s] alleged
Confrontation Claim; [appellant]
subsequently elected to proceed with his
counsel.
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[Footnote 6] On March 6, 2015,
[appellant] filed a Motion for the
Appointment of Counsel Due to
Irreconcilable Differences.
On March 4, 2016, following a review of the
pleadings, record, evidence and argument of
counsel, [appellant’s] Petition for Post-Conviction
Relief was dismissed as lacking merit.[Footnote 7]
On March 30, 2016, [appellant], through his counsel,
filed a Notice of Appeal to the Superior
Court.[Footnote 8]
[Footnote 7] The dismissal occurred
more than twenty days after [appellant]
was served with notice of the
forthcoming dismissal of his PCRA
petition. Pa.R.Crim.P. 907.
[Footnote 8] On May 10, 2016, our
Superior Court issued an Order directing
compliance with Pa.R.A.P. 3517 and filing
the docketing statement with the
Prothonotary of the Superior Court by
May 20, 2016. On May 19, 2016,
[appellan’ts] attorney timely complied
with the Superior Court’s Order.
Trial court opinion, 1/11/17 at 1-4 (footnotes 1-3 omitted; some brackets in
original).
Appellant’s counseled brief raises the following issue for our review:
“Was trial counsel ineffective in failing to object to the court’s defective jury
instruction on reasonable doubt?” (Appellant’s brief at 3; full capitalization
omitted). Our review of the record, however, reveals that appellant failed to
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raise this issue in his counseled Rule 1925(b) statement.2 Therefore,
appellant waives this issue on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (issues
not included in a petitioner’s Rule 1925(b) statement are waived); see also
Commonwealth v. Hannibal, 156 A.3d 197, 211 (Pa. 2016); cert.
denied, 138 S. Ct. 59 (2017) (reiterating that issues not raised in a
petitioner’s Rule 1925(b) statement will be deemed waived).
Order affirmed.
2 We note that in his pro se Rule 1925(b) statement, appellant raised three
ineffective assistance of counsel claims. First, appellant alleged that trial
counsel rendered ineffective assistance of counsel for failing to object to “the
Commonwealth’s inclusion of a DHS report in violation of [appellant’s] 6th
and 14th amendment right [sic] to confront his accuser and due process of
law.” Second, appellant alleged PCRA counsel’s ineffectiveness for amending
appellant’s PCRA petition and failing to include a claim of trial counsel’s
ineffectiveness for failing to object to the Commonwealth’s inclusion of the
DHS report and “not objecting to the PCRA [c]ourt holding an incamera [sic]
evidentiary hearing . . . to determine the merits of [PCRA counsel’s amended
claims].” Third, appellant claimed that the PCRA court abused its discretion
when it denied appellant an in camera evidentiary hearing and did not
dispose of his pro se motion for appointment of new PCRA counsel when he
raised a claim of ineffectiveness of PCRA counsel. (Appellant’s
“1925(b) statement of matters complained of on appeal,” 1/11/13.)
In his counseled Rule 1925(b) statement, appellant alleged that the PCRA
court erred in dismissing his PCRA petition without an evidentiary hearing
when he “properly pled and could have proven several causes for relief
including . . . ineffectiveness of trial counsel where counsel failed to object to
a grossly improper instruction to the jury which discounted the importance
and even the relevance of character testimony [and] where counsel failed to
subpoena and produce known and available witnesses.” (Appellant’s
“statement of matters complained of pursuant to Rule of Appellate
Procedure 1925(b), 1/22/13 at 1.) In that statement, appellant also claimed
his entitlement to a remand for an evidentiary hearing. (Id. at 2.)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/18
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