Com. v. Ramey, M. ( 2019 )

J-S61045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUIS RAMEY :
:
Appellant : No. 819 EDA 2018
Appeal from the PCRA Order February 26, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001422-2013
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 21, 2019
Marquis Ramey appeals pro se from the order dismissing his first petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, without a hearing. We affirm.
Following a non-jury trial in August of 2014, Appellant was convicted of
loitering and prowling at night, possessing instruments of crime, receiving
stolen property, unlawfully possessing a firearm, carrying a firearm without a
license, and criminal conspiracy.1 The trial court sentenced Appellant to an
aggregate term of nine to twenty years’ imprisonment. On direct appeal,
Appellant argued the trial court erred in denying his pre-trial suppression
motion. A panel of this Court affirmed Appellant’s judgment of sentence and
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1 18 Pa.C.S.A. §§ 5506, 907(a), 3925(a), 6105(a)(1), 6106(a)(1), and
903(a)(1).
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our Supreme Court denied allocatur. See Commonwealth v. Ramey 3513
EDA 2014 (Pa. Super. filed, Jan. 13, 2016) (unpublished memorandum).
On January 14, 2016, Appellant filed a timely pro se PCRA petition.2 The
PCRA court appointed counsel; however, Appellant filed several petitions to
remove appointed counsel and proceed pro se. Following a Grazier3 hearing,
the PCRA court granted Appellant’s request. Subsequently, based upon its
review of the record, the court issued notice of its intent to dismiss. Despite
Appellant’s response, the court dismissed Appellant’s petition without a
hearing. This timely appeal followed.
On appeal, Appellant presents the following questions for our review:
I. Whether the PCRA court erred in not allowing [] Appellant
to show the trial court’s error in the conviction of loitering
and prowling at night[], possession of firearms, and criminal
conspiracy; and will it ([the] PCRA [court]) accept the
argument of a miscarriage of justice that the trial court
performed at the suppression hearing and trial?
II. Whether the PCRA court erred in not reversing the
conviction of loitering and prowling at night[]? Was there
sufficient evidence to convict [] Appellant of this crime?
III. Whether the PCRA court erred in not reversing the
conviction[s] of possession of firearms, firearms carry
without a license, possession of an instrument of crime, and
receiving stolen property? Also whether the PCRA court
erred [and] showed a miscarriage of justice in its decision
to find him (Appellant) guilty?
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2 Appellant filed an amendment to his petition on October 19, 2017.
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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IV. Whether the PCRA court erred in not reversing the
conviction of criminal conspiracy? Also, whether the
prosecution produced any evidence that shows an “overt
act” committed by [] Appellant?
V. Whether the PCRA court erred in the sentencing of this
Appellant? Did the PCRA court violate the Appellant’s [rights
under the] United States Constitution’s Eighth []
Amendment[] cruel and unusual punishment [clause], and
[the] United States Constitution’s Fourteenth []
Amendment[] due process clause?
See Appellant’s Brief, at 3 (unnecessary capitalization and formatting
omitted)
Prior to reaching the merits of Appellant’s issues, we must first
determine if he has properly preserved these issues for our review. As
explained below, none of Appellant’s issues are properly before this court.
Through his first issue, Appellant claims that the trial court created a
“miscarriage of justice” by failing to take “into consideration any of the
evidence that was provided by the Appellant’s counsel.” Appellant’s Brief, at
8. This is a challenge to the weight of the evidence underlying his convictions.
Additionally, issues two through four attack the sufficiency of the evidence
underlying his convictions. See Appellant’s Brief, at 12-19. These are all
claims of trial court error.4
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4 We recognize that sufficiency and weight claims raised as the underlying
issue in a counsel ineffectiveness claim are distinct from claims of trial court
error and, as such, cognizable under the PCRA. See Commonwealth v.
Natividad, 938 A.2d 310, 329 (Pa. 2007). However, in his appellate brief,
Appellant specifically states that he is not raising any claims of counsel
ineffectiveness. See Appellant’s Brief, at 10 (“In the instant case, this pro se
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The PCRA, however, procedurally bars claims of trial court error,
by requiring a petitioner to show the allegation of error is not
previously litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544.
At the PCRA stage, claims of trial court error are either previously
litigated (if raised on direct appeal) or waived (if not). See
Commonwealth v. Spotz, [] 18 A.3d 244, 260-61, 270 ([Pa.]
2011) (rejecting claims of trial court error as either previously
litigated where raised on direct appeal or waived where not raised
[on] direct appeal).
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)
(en banc).
Appellant failed to raise any of these claims of error on direct appeal. As
such, we find these issues waived and procedurally barred from review under
the PCRA.
Further, Appellant’s final issue is waived for his failure to develop this
argument in his appellate brief.
Although this Court is willing to construe liberally materials filed
by a pro se litigant, a pro se appellant enjoys no special benefit.
Accordingly, pro se litigants must comply with the procedural
rules set forth in the Pennsylvania Rules of the Court. This Court
will not act as counsel and will not develop arguments on behalf
of an appellant.
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017) (internal
quotation marks and citations omitted). “It is Appellant’s obligation to
sufficiently develop arguments in his brief by applying the relevant law to the
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Appellant could not argue the trial counsel’s ineffectiveness where he
believe[s] that the trial counsel was very effective in both suppression and
trial”). Therefore, we have not reviewed these claims in the context of
counsel’s ineffectiveness.
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facts of the case, persuade this Court that there were errors below, and
convince us relief is due because of those errors. If an appellant does not do
so, we may find the argument waived.” Commonwealth v. Gibbs, 981 A.2d
274, 284 (Pa. Super. 2009). Despite his inclusion of five issues on appeal,
Appellant’s argument section of his appellate brief only addressed the first
four issues. The brief completely fails to address his claim that the PCRA5 court
erred in imposing sentence and by violating his eighth and fourteenth
amendment rights under the United States Constitution. Accordingly, he has
waived this issue on appeal for failure to develop an argument. See
Tchirkow, 160 A.3d at 804 (Pa. Super. 2017) (“It is well-established that
‘[w]hen issues are not properly raised and developed in briefs, when the briefs
are wholly inadequate to present specific issues for review, a court will not
consider the merits thereof’”).
As Appellant is due no relief on any of his issues, we affirm the PCRA
court’s order dismissing his petition.
Order affirmed.
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5 As Appellant did not develop this argument, we are unsure as to whether he
intended to direct this claim of error in sentencing to the trial court or the
PCRA court. If Appellant intended to direct this claim of error to the trial court,
as the court that actually imposed his sentence, we would also find this
argument waived as procedurally barred from review under the PCRA. See
Commonwealth v. Spotz, 18 A.3d at 260-61, 270 (claims of trial court error
are waived where not raised on direct appeal).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/19
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