Com. v. Ramos, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
LOUIS RAMOS
Appellant No. 897 EDA 2019
Appeal from the Judgment of Sentence Entered March 13, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0000990-2017
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED JULY 29, 2020
Appellant Louis Ramos appeals from the March 13, 2019 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County (“trial
court”), following his jury convictions for involuntary deviate sexual
intercourse (“IDSI”) with a child, unlawful contact with a minor, indecent
assault, and corruption of a minor.1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
summarized by the trial court:
This case arises from an illicit sexual relationship between
Appellant and his minor nephew, I.C. At trial, I.C. testified that
from 2008 to 2010 his family lived with Appellant[, his maternal
uncle,] in Philadelphia. I.C. indicated that he and Appellant, “hit
it off” and always hung out together. At that time, I.C. was 7 to
8 years old and was going from the third grade to fourth grade.
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1 18 Pa.C.S.A. §§ 3123(a)(1), 6318(a)(1), 3126(a)(1), and 6301(a)(1),
respectively.
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I.C. stated that during this time, Appellant began to undress and
kiss him when they were in the basement of the residence.
Appellant told I.C., “[d]on’t tell anybody. This has to stay a top
secret.” In addition, Appellant began introducing I.C. to
marijuana.
As the relationship progressed, Appellant began taking I.C. to his
job working the night shift at a scrap yard. There, Appellant began
showing I.C. gay porn videos and suggested that they try the acts
depicted in the videos. On multiple occasions, while watching the
gay porn, Appellant performed oral sex on I.C. In addition,
Appellant had I.C. shave his butt and legs and place his fingers in
[Appellant’s] butt. At Appellant’s suggestion, I.C. also placed his
penis in Appellant’s butt. Appellant asked I.C. to perform oral sex
on him, but I.C. declined, fearing he would choke. Instead, I.C.
would “jerk off” Appellant by putting his hand on Appellant’s penis
and pulling back and forth. When I.C. refused to allow Appellant
to place his penis in I.C.’s butt because he was afraid it would
hurt, Appellant would instead lay behind I.C., place his penis
between his legs and then thrust back and forth.
After I.C.’s family and Appellant moved to I.C’s father’s house,
Appellant on multiple occasions entered the bathroom when I.C.
was taking a shower and performed oral sex on him.
In 2010, [I.C.] and his family moved to Connecticut and I.C. had
no further contact with Appellant until the death of his
grandmother in January 2016. Appellant and a number of other
relatives from Philadelphia travelled to Connecticut for her funeral.
After Appellant returned to Philadelphia, I.C. confided in his
boyfriend, Adbiel who urged him to tell his mother about the above
events. I.C. then informed his mother, who called the Philadelphia
Police.
Appellant was arrested on January 20, 2017 and charged with[,
inter alia the above-mentioned] offenses. On July 18, 2018, the
case proceeded to a jury trial before the Honorable Diana L. Anhalt
and on July 23, 2018, the jury returned a verdict of guilty [on
those] offenses.
Trial Court Opinion, 10/9/19, at 1-4 (record citations omitted). On October
25, 2018, the trial court sentenced Appellant to an aggregate term of 12 to
24 years’ imprisonment. Appellant filed post-sentence motions. On March
13, 2019, the trial court granted the post-sentence motion, resentencing
Appellant to a concurrent terms of 7 to 14 years’ imprisonment for IDSI and
unlawful contact with a minor and consecutive term of 1 to 2 years in prison
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for indecent assault. The court imposed no further penalty for corruption of a
minor. As a result, the trial court reduced Appellant’s aggregate sentence to
8 to 16 years’ imprisonment. Appellant timely appealed. The trial court
directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained
of on appeal. Appellant complied. In response, the trial court issued a
Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant presents three issues for our review.
[I.] Is the sentence imposed on the conviction for indecent assault
of a child illegal because it merges for purposes of sentence with
the [IDSI] conviction?
[II.] Is Appellant entitled to a new trial because of the introduction
in evidence of the video recording of the interview with the
complainant herein?
[III.] Was the testimony of Denise Wilson of Philadelphia
Children’s Alliance inadmissible in two respects?
Appellant’s Brief at 3 (unnecessary capitalizations omitted).
Preliminarily, we agree with the Commonwealth that Appellant has
waived his second and third issues on appeal. See Commonwealth’s Brief at
15-19. At trial, Appellant failed to assert contemporaneous objections to the
admission of the video recording and Ms. Wilson’s testimony. It is settled that
an appellant’s “failure to raise a contemporaneous objection to evidence at
trial waives that claim on appeal.” Commonwealth v. Thoeun Tha, 64 A.3d
704, 713 (Pa. Super. 2013) (citation omitted); see Commonwealth v.
Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (to preserve issue for appellate
purposes, party must make timely and specific objection to ensure trial court
has opportunity to correct alleged error); Keffer v. Bob Nolan’s Auto
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Service, Inc., 59 A.3d 621, 645 (Pa. Super. 2012) (“one must object to
errors, improprieties or irregularities at the earliest possible stage of the
adjudicatory process to afford the jurist hearing the case the first occasion to
remedy the wrong and possibly avoid an unnecessary appeal to complain of
the matter.”) (citations omitted) (emphasis added); see also Pa.R.E. 103(a)
(providing that an “[e]rror may not be predicated upon a ruling that admits
or excludes evidence unless . . . a timely objection . . . appears of record.”);
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”).
Acknowledging waiver based on lack of objection, Appellant suggests
that his second and third issues be construed and resolved as claims of
ineffective assistance of trial counsel. We disagree. As the Commonwealth
correctly notes, Appellant may not raise ineffectiveness claims on direct
appeal but must instead raise them in a PCRA petition. See Commonwealth’s
Brief at 16-17, 19. In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002),
our Supreme Court held that, as a general rule, defendants must wait to raise
ineffective assistance of counsel claims until collateral review. Only in specific
limited circumstances may a defendant raise ineffectiveness claims in post-
sentence motions and on direct appeal. See, e.g., Commonwealth v.
Holmes, 79 A.3d 562, 563–64 (Pa. 2013) (trial court has discretion to
entertain ineffectiveness claims on post-verdict motions and direct appeal
where: (1) claim of ineffectiveness is apparent from record and meritorious to
the extent that immediate consideration best serves interests of justice; or
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(2) where good cause is shown and defendant knowingly and expressly waives
his entitlement to seek subsequent PCRA review from his conviction and
sentence). These exceptions do not apply here. Appellant did not claim
ineffective assistance of trial counsel in post-verdict motions, and he did not
knowingly or expressly waive his entitlement to seek subsequent PCRA review
from his conviction. At present, there is nothing in the record that facilitates
intelligent appellate review of Appellant’s claims of ineffective assistance.
Therefore, Appellant must wait until PCRA proceedings to raise ineffective
assistance claims. Commonwealth v. Britt, 83 A.3d 198, 204 (Pa. Super.
2013) (appellant cannot seek review of ineffectiveness claim on direct appeal,
“as it involves non-record-based claims, nor has Appellant waived PCRA
review”).
We now turn to Appellant’s first issue that the trial court erred in failing
to merge indecent assault and IDSI for purposes of sentencing. As a result,
he argues that his sentence for indecent assault is illegal.
“Whether Appellant’s convictions merge for sentencing is a question
implicating the legality of Appellant’s sentence. Consequently, our standard
of review is de novo and the scope of our review is plenary. See
Commonwealth v. Collins, 764 A.2d 1056, 1057, 1057 n.1 (Pa. 2001).
Section 9765 of the Judicial Code provides:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
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42 Pa.C.S.A. § 9765.
The statute’s mandate is clear. It prohibits merger unless two distinct
facts are present: 1) the crimes arise from a single criminal act; and 2) all of
the statutory elements of one of the offenses are included in the statutory
elements of the other. See Commonwealth v. Tanner, 61 A.3d 1043, 1046
(Pa. Super. 2013).
Instantly, in support of his argument, Appellant relies on
Commonwealth v. Tighe, 184 A.3d 560 (Pa. Super. 2018), aff’d 224 A.3d
1268 (Pa. 2020). We, however, find such reliance unavailing as Tighe is
distinguishable. In Tighe, this Court concluded that defendant’s conviction
for indecent assault merged for sentencing purposes with his conviction for
IDSI where the convictions stemmed from a single five-minute incident in
which defendant held the victim down and penetrated her vaginally and orally.
Id. at 563.
As the trial court explained:
The instant case is distinguishable from Tighe since Appellant’s
IDSI and indecent assault charges stem from different criminal
acts. I.C. testified that while at Appellant’s job and inside I.C.’s
father’s home, Appellant performed oral sex on him on a number
of occasions. In addition, while at Appellant’s job, I.C. placed his
penis in Appellant’s butt. These acts formed the basis for
Appellant’s conviction for IDSI. I.C., however, described a litany
of additional acts committed by Appellant, namely, stroking I.C’s
penis, placing his penis between the legs of I.C. and thrusting back
forth, and having I.C. digitally penetrate Appellant’s anus, which
formed the basis for Appellant’s conviction for indecent assault.
As a result, the offenses do not merge.
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Trial Court Opinion, 10/9/19, at 6. Accordingly, Appellant does not obtain
relief on his merger claim as he repeatedly abused I.C. over a period of time.2
See Commonwealth v. Roane, 204 A.3d 998, 1002 (Pa. Super. 2019) (no
merger for indecent assault and rape where crimes were based on separate
acts involving the same victim). We therefore affirm the trial court’s judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2020
____________________________________________
2 Insofar as Appellant relies on general conspiracy cases to argue that the jury
here issued a general verdict making it impossible to ascertain the acts upon
which it found Appellant guilty beyond a reasonable doubt, such argument is
waived. Appellant failed to assert it before the trial court or in his Rule 1925(b)
statement. See Commonwealth v. Hill, 16 A.3d 484, 492 (Pa. 2011) (citing
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)); Pa.R.A.P.
1925(b)(4)(vii) (“[i]ssues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”); see
also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). Even if not waived, Appellant’s
reliance on general conspiracy cases is misplaced. As the Commonwealth
aptly points out, “the jury returned specific convictions of specific crimes, not
a general conspiracy conviction.” Commonwealth Brief at 14.
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