Com. v. Rameriz, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALEXANDER RAMERIZ :
:
Appellant : No. 1329 MDA 2020
Appeal from the Judgment of Sentence Entered August 18, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003837-2018
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: JUNE 14, 2021
Alexander Rameriz (“Rameriz”) appeals from the judgment of sentence
imposed following his convictions of simple assault, unlawful restraint, false
imprisonment, and harassment.1 Additionally, Rameriz’s counsel, Matthew P.
Kelly, Esquire (“Attorney Kelly”), has filed an Application to Withdraw as
Counsel, and a brief pursuant to Anders v. California, 368 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant
Attorney Kelly’s Application to Withdraw, and affirm Rameriz’s judgment of
sentence.
On July 19, 2018, at approximately 6:30 p.m., Gregory Thompson
(“Thompson”), met an associate named “Rich,” later identified as Richard
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1 18 Pa.C.S.A. §§ 2701(a)(3), 2902(a)(1), 2903(a), 2709(a)(1).
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Kasperitis (“Kasperitis”), at 171 Charles Street, Wilkes-Barre, Pennsylvania.
Shortly thereafter, Thompson and Kasperitis went inside the residence to a
bedroom. There were multiple people inside the home and in the bedroom.
Kasperitis left the bedroom for a short time before returning with a man he
introduced as “Country,” later identified as Rameriz.
Rameriz accused Thompson of owing him $200. Thompson claimed that
he had not previously met Rameriz, and did not owe him money. Rameriz
and an unidentified man took Thompson to the back room of the house,
emptied Thompson’s pockets, took his ATM card, and demanded that
Thompson give them money. Rameriz tied Thompson’s hands together with
plastic zip ties, and a neck tie. Rameriz and the unidentified man then beat
Thompson. At some point, they pulled out a gun and began hitting Thompson
in the head with the firearm. Thompson was kept at the home the entire
night, and was punched in the head and kicked in the ribs several times
throughout the night. Rameriz also ordered two men to stand at the exits to
the home throughout the night, preventing Thompson from leaving.
Sometime between 7:00 and 8:00 a.m. on July 20, 2018, Thompson
told Rameriz that Thompson could withdraw funds from his bank account.
Thompson told Rameriz where his bank was located, after which Rameriz
ordered an unidentified individual to take Thompson to the bank.
Subsequently, Thompson, Kasperitis, and an unidentified driver, went to
Thompson’s bank. Upon their arrival, the unidentified driver remained in the
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vehicle, while Kasperitis stood outside of the bank, by the door. Thompson
entered the bank and told the bank teller that he did not have an account at
the bank, but he had been held captive by numerous men, including the two
outside, the entire night. The bank’s branch manager, Sandra Wheeler
(“Wheeler”), ordered another employee to lock the bank doors while both
Wheeler and a customer service representative called 911.
Police Officer Christopher Benson (“Officer Benson”), of the Wilkes-Barre
Police Department, responded to the 911 call and interviewed Thompson.
Thereafter, Officer Benson and other police officers located the unidentified
driver2 and Kasperitis. Kasperitis, who was found hiding in a rack of clothes
in a nearby store, was taken into custody.
Kasperitis confirmed what Thompson had told police. Thereafter, Officer
Benson proceeded to the home on Charles Street, without a warrant, to
complete a “knock and talk.” A tenant of the Charles Street home allowed
Officer Benson to enter, and Officer Benson found Rameriz in the back room
of the home. Rameriz claimed that his name was not “Country,” but that he
was known as “Big Head.” Subsequently, Officer Benson found various
narcotics in the home, after which some individuals within the home were
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2 The driver was determined to be an unknowing accomplice and was later
released.
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arrested for drug-related offenses and outstanding warrants. Officer Benson
later returned to police headquarters, where he again interviewed Kasperitis.3
On July 23, 2018, Thompson came to the Wilkes-Barre police
headquarters and identified Rameriz from a photo array. The next day, the
Commonwealth charged Rameriz with, inter alia, the above-mentioned
offenses.
On January 8, 2020, following a two-day jury trial, Rameriz was
convicted of the above-mentioned offenses. The trial court deferred
sentencing for the preparation of a pre-sentence investigation report (“PSI”).
Due to the Covid-19 Pandemic, Rameriz’s sentencing was rescheduled
multiple times. On August 18, 2020, the trial court sentenced Rameriz to
concurrent prison terms of 12 to 24 months for his conviction of simple
assault, and 6 to 12 months for his conviction of false imprisonment. The trial
court also imposed a consecutive prison term of 15 to 36 months for Rameriz’s
conviction of unlawful restraint. Rameriz’s conviction for harassment merged
for sentencing purposes. Thus, the trial court sentenced Rameriz to an
aggregate term of 27 to 60 months in prison. Rameriz was also credited with
586 days of time served.
On August 21, 2020, Rameriz filed a Post-Sentence Motion requesting,
inter alia, an additional 139 days pre-trial credit for time served. On October
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3 Kasperitis died at some point during the police investigation, and prior to
trial.
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5, 2020, the trial court granted Rameriz’s Post-Sentence Motion with respect
to his credit for time served, adding credit for an additional 120 days, resulting
in an aggregate 706 days of credit for time served.
Rameriz filed a timely Notice of Appeal 4 and court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal. Additionally,
Rameriz’s trial counsel, John Pike, Esquire, requested to withdraw from
representation, and that conflict counsel be appointed for Rameriz’s appeal.
Attorney Kelly, who was appointed to represent Rameriz, subsequently filed
with this Court an Application to Withdraw as Counsel, and a brief pursuant to
Anders. Rameriz filed a pro se Application for Relief, in which he requested
leave to file a pro se response to Attorney Kelly’s Anders Brief. This Court
granted Rameriz’s Application for Relief, and he subsequently filed a “Pro Se
Response to Ander’s [sic] Brief.”
When counsel files an Anders brief, and the appellant files a pro se or
counseled response, this Court will first determine whether counsel has
complied with the dictates of Anders and Santiago. See Commonwealth
v. Bennett, 124 A.3d 327, 333 (Pa. Super. 2015) (outlining the proper
procedure where counsel files an Anders brief and the appellant files a pro se
response). If counsel has complied with the dictates of Anders and
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4 Rameriz purports to appeal from the jury verdict rendered on January 8,
2020. However, “in criminal cases appeals lie from the judgment of sentence,
rather than from the verdict of guilt.” Commonwealth v. Charles O’Neill,
578 A.2d 1334, 1335 (Pa. Super. 1990).
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Santiago, we will address the issues raised in the Anders brief, and conduct
our independent examination of the record as to those issues. See id. Finally,
if we determine those issues to be without merit, we next examine the
appellant’s pro se allegations. See id. As to appellant’s pro se allegations,
when an advocate’s brief has been filed, “[this] Court is limited to examining
only those issues raised and developed in the brief[; w]e do not act as, and
are forbidden from acting as, appellant’s counsel.” Id.Pursuant to Anders, when counsel believes that an appeal is frivolous
and wishes to withdraw from representation, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
[the] defendant and advise him or his right to retain new counsel
or to raise any additional points that he deems worthy of the
court’s attention. The determination of whether the appeal is
frivolous remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted).
Additionally, our Supreme Court has explained that a proper Anders
brief must
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
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Santiago, 978 A.2d at 361.
Instantly, our review of the Anders Brief and the Application to
Withdraw confirms that Attorney Kelly has substantially complied with each of
the technical requirements of Anders and Santiago. See Commonwealth
v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Attorney Kelly
indicates that he has made a conscientious examination of the record and
determined that an appeal would be frivolous. See Anders Brief at 7. The
record further reflects that Attorney Kelly has furnished a copy of the Anders
Brief to Rameriz, and advised Rameriz of his right to retain new counsel or
proceed pro se, or raise any additional points that he deems worthy of this
Court’s attention. Additionally, the Anders Brief substantially complies with
the requirements of Santiago. As Attorney Kelly has complied with all of the
requirements for withdrawing from representation, we will examine the record
and make an independent determination of whether Rameriz’s appeal is, in
fact, wholly frivolous.
In the Anders Brief, Attorney Kelly presents the following issue for our
review: “Whether the trial court abused its discretion in sentencing
[Rameriz?]” Anders Brief at 1.
Rameriz claims that the trial court abused its discretion in failing to
impose concurrent sentences on all charges. Id. at 6.
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Rameriz’s claim challenges the discretionary aspects of his sentence,
from which there is no absolute right to appeal. See Commonwealth v.
Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016). Rather, when an appellant
challenges the discretionary aspects of his sentence, we must consider his
brief on this issue as a petition for permission to appeal. Commonwealth v.
Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997); see also Commonwealth v.
Tuladziecki, 522 A.2d 17, 18 (Pa. 1987). Prior to reaching the merits of a
discretionary sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentencing appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b)
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Ramirez filed a timely Notice of Appeal. However, as Attorney
Kelly notes in the Anders Brief, Rameriz did not raise this claim in his Post-
Sentence Motion or at sentencing; rather he challenged the trial court’s credit
for time-served calculation. See Anders Brief at 7. Additionally, as noted by
the trial court in its Opinion, Rameriz did not preserve this claim in his
Pa.R.A.P. 1925(b) Concise Statement. See Trial Court Opinion, 1/13/21, at
6-11. Accordingly, Rameriz’s claim has not been preserved for our review.
See Moury, supra.-8-
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Moreover, based upon our independent review of the record, even if
Rameriz had preserved this claim for review, we would conclude that it lacks
merit. As the trial court stated in its Opinion, the trial court reviewed
Rameriz’s PSI, and imposed a sentence within the standard range of the
sentencing guidelines. See Trial Court Opinion, 1/13/21, at 10; see also
Moury, 992 A.2d at 171 (stating that where a sentence is within the standard
range of the sentencing guidelines, Pennsylvania law presumes the sentence
is appropriate under the Sentencing Code); Commonwealth v. Devers, 546
A.2d 12, 18 (Pa. 1988) (explaining that where a sentencing court considered
the PSI, it is presumed that they are “aware of relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.”); Commonwealth v. Prisk, 13 A.3d 526, 533
(Pa. Super. 2011) (stating that, “[g]enerally, Pennsylvania law ‘affords the
sentencing court discretion to impose its sentence concurrently or
consecutively’”) (citation omitted). Accordingly, Rameriz’s claim lacks merit.
We now turn to Rameriz’s issues, raised in his Pro Se Response.
Rameriz raises the following claims for our review:
1) [] Th[o]mpson inconsistency on the identification on transcripts
[sic] from the preliminary hearing pg 24 line 8 to 15 now if you
look at the transcripts from the trial pg 18 line 11 to 25 in if you
to pg 19 line 15 to 24 in pg 19 line 5 to 11 pg 20 line[ ]7 to 10 pg
20 line 13 to 17. [sic]
2) [] Th[o]mpson inconsistency in his statements from the
preliminary hearing to his trial statements inconsistency. [sic]
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3) [] Wheeler is not in any discovery or any interviews or
statements[.]
4) Officer Benson inconsistency on the affidavit[,] [sic] like the
time in [sic] date that [] Thompson came in for the photo array
for example on the photo array haves [sic] a time and date that
stated July 23[,] 2018 at 2:05 [p.m.] but Officer Benson states on
the affidavit that [] Tho[m]pson came in on July[ ]24[,] 2018[ ]at
1440 hours.
Pro Se Response to Ander’s [sic] Brief at 1 (some capitalization omitted).
Rameriz’s entire Pro Se Response is one page in length and does not
advance any additional argument, nor does he cite to relevant legal authority,
or request any relief. See id. Accordingly, we conclude that Rameriz has
waived these claims. See Bennett, supra; see also Commonwealth v.
Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996) (stating that this Court will
not review a wholly inadequate brief that fails to comply with the guidelines
set forth in Pa.R.A.P. 2111(a)); Pa.R.A.P. 2119(a) (stating that the argument
shall include “such discussion and citation of authorities as are deemed
pertinent.”).
Application to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/14/2021
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