Com. v. Rameriz, A.

• Court: Superior Court of Pennsylvania
• Decided: June 14, 2021
• Docket: 1329 MDA 2020
• Status: Unpublished

Opinion

J-S14031-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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). J-S14031-21

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

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

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

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.

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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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