Com. v. Ramos, X.

J-S67041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
XAVIER J. RAMOS,
Appellant No. 529 MDA 2015
Appeal from the Judgment of Sentence February 25, 2015
in the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0001648-2013
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 29, 2015
Appellant, Xavier J. Ramos, appeals from the judgment of sentence
entered on February 25, 2015. On appeal he challenges the weight of the
evidence for his jury conviction of aggravated indecent assault, corruption of
minors, and indecent assault.1 We affirm.
The underlying facts and procedural history are as follows. On July 29,
2013, the victim, M.W., was thirteen years old. She spent the previous
night sleeping on the sofa in Appellant’s house because she was babysitting
for Appellant and his wife’s young child. Appellant and his wife are M.W.’s
uncle and aunt.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3125(a)(8), 6301(a)(1)(i), and 3126(a)(8), respectively.
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After M.W. awoke, Appellant carried her to his bedroom, placed her on
his bed, and left. M.W. laid on the bed and watched Appellant’s children
play a computer game in the bedroom. Appellant reentered the room, laid
behind M.W. on the bed and began to “hump” her from behind by rubbing
his penis against her buttocks. He also placed his hand down M.W.’s pants
and began to move it sideways on her labia. At trial, M.W. testified that she
did not say anything at the time because she was scared and in shock. The
entire incident lasted approximately eight minutes after which M.W. went to
the bathroom. When M.W. returned from the bathroom, Appellant picked
her up, spun her around, and told her that he loved her.
On January 8, 2015, this matter proceeded to a jury trial. Appellant
did not appear at the time designated for trial, and after making various
efforts to locate him to no avail, the trial court proceeded with the jury trial
in his absence. Appellant was convicted of the aforementioned charges. On
February 25, 2015, Appellant appeared for sentencing. The court imposed
an aggregate sentence of not less than six nor more than fifteen years of
incarceration.
Appellant did not file any post-sentence motions. See Pa.R.Crim.P.
720(A)(1) (requiring a written post-sentence motion to be filed no later than
ten days after imposition of sentence). On March 2, 2015, Appellant’s
counsel filed a motion to withdraw as counsel. On March 9, 2015, Appellant,
acting pro se, sent a letter to the court stating that he intended to hire a
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new attorney to represent him in his appeal. On March 20, 2015, Appellant,
again acting pro se, filed a petition to contest the charges.
On March 24, 2015, the trial court found Appellant’s petition to contest
the charges the equivalent of a notice of appeal and issued an order which
stated that once the issue of who would be representing Appellant was
determined, the court would enter a Rule 1925(b) order to identify what
issues would be pursued on appeal. (See Order, 3/24/15). On March 26,
2015, the trial court denied Appellant’s counsel’s petition to withdraw, and
directed Appellant to file his concise statement of errors complained of on
appeal. See Pa.R.A.P. 1925(b).
On April 16, 2015, Appellant timely filed a counseled concise
statement of errors complained of on appeal. See id. The trial court filed
its 1925(a) opinion on May 15, 2015. See Pa.R.A.P. 1925(a).
Appellant raises one issue for our review: “[1.] Whether the verdict
was against the weight of the evidence?” (Appellant’s Brief, at 6) (most
capitalization omitted). This issue is waived.
“[A] weight of the evidence claim must be preserved either in a post-
sentence motion, by a written motion before sentencing, or orally prior to
sentencing. Failure to properly preserve the claim will result in waiver, even
if the trial court addresses the issue in its opinion.” See Commonwealth v.
Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (citations omitted); see
also Pa.R.Crim.P. 607.
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Here, our review of the record does not reveal, and Appellant does not
indicate, that he moved for a new trial on a weight of the evidence grounds
or filed a post-sentence motion raising a weight of the evidence claim.
Accordingly, Appellant has waived his claim. See Thompson, supra at
490-91. Additionally, although the trial court addressed Appellant’s weight
of the evidence challenge in its 1925(a) opinion (rejecting it), by that time,
the trial court was divested of its jurisdiction to rule on the issue or take any
further action in the case. See id. at 491; (see also Trial Ct. Op., at 9-11).
Moreover, on independent review, we discern no basis that would have
made it appropriate for the trial court to grant a new trial on a weight of the
evidence claim if Appellant had properly raised such claim.
Our standard of review for a challenge to the weight of the evidence is
well-settled.
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence and
to determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006), appeal
denied, 911 A.2d 933 (Pa. 2006) (citation omitted).
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Here, by its verdict the jury found the testimony of the victim to be
credible and found Appellant guilty of aggravated indecent assault,
corruption of minors, and indecent assault. Although Appellant contends
that this was against the weight of the evidence because testimony of the
victim was not credible, “[t]his Court has long-recognized that the
uncorroborated testimony of a sexual assault victim, if believed by the trier
of fact, is sufficient to convict a defendant, despite contrary evidence from
defense witnesses.” Id. at 562 (citation and internal quotation marks
omitted).
Accordingly, even if this issue had not been waived, we would
conclude that the “verdict is [not] so contrary to the evidence as to shock
one’s sense of justice.” Id. at 561.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
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