Com. v. Ramos, M.

Superior Court of Pennsylvania

Com. v. Ramos, M.

DecidedApril 23, 2019

Docket1777 EDA 2018

StatusUnpublished

This text of Com. v. Ramos, M. (Com. v. Ramos, M.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Ramos, M., (Pa. Ct. App. 2019).

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Opinion

J-S77015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL A. RAMOS : : Appellant : No. 1777 EDA 2018

Appeal from the PCRA Order Entered May 31, 2018 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0005015-2015

BEFORE: OTT, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OTT, J.: FILED APRIL 23, 2019

Michael A. Ramos appeals from the order entered on May 31, 2018, in

the Court of Common Pleas of Montgomery County, denying him relief without

a hearing on his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Ramos raises three

issues. He claims the PCRA court erred in denying him relief on his claims: 1)

trial counsel provided ineffective assistance by failing to file an interlocutory

appeal challenging the Commonwealth’s reliance on hearsay at the

preliminary hearing; 2) trial counsel bullied him into entering into the

negotiated guilty plea; and 3) his sentence is illegal pursuant to

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S77015-18

On June 30, 2015, Ramos was charged with 45 counts of criminal

activity related to his filming and photographing two females, one adult and

one minor, in two incidents on the same day, while they were changing clothes

in the dressing rooms at a Target store. When the adult saw a man’s hand

holding his cell phone over the dressing room wall she screamed and fled the

changing room. By watching surveillance video, Ramos was identified as the

only male in the changing room area at the time. Pursuant to a warrant,

Ramos was arrested and certain property was seized, including a black Nokia

cell phone. A forensic examination of that phone revealed 14 videos taken in

the Target changing room area. Thirteen of the videos depicted a minor

female trying on bathing suits. Nine of those videos depicted the child in some

state of nudity. The fourteenth video depicted the adult female who saw the

cell phone and screamed. This video did not depict the woman in a state of

undress. Several other videos were also found on the cell phone, most of

which depicted women using public bathrooms. These women were

apparently never identified and were not used as the basis of any of the

charges in this matter.

The 45 charges against Ramos included multiple counts of invasion of

privacy, sexual abuse of children (photographing a minor), and sexual abuse

of children (possession of child pornography).1 On December 8, 2016, Ramos

entered into a negotiated guilty plea to one count of invasion of privacy, one ____________________________________________

1 18 Pa.C.S. §§ 7507.1(a)(1) and (a)(2), 6312(b)(2), and 6312(d), respectively.

-2- J-S77015-18

count of possession of child pornography and two counts of photographing a

minor. In exchange for the guilty plea, Ramos received an aggregate sentence

of 3½ to 10 years’ incarceration, followed by 5 years of probation.

Additionally, the Commonwealth nolle prossed all remaining charges (41

additional counts).

Ramos did not file a direct appeal. Accordingly, his judgment of

sentence (JOS) became final on January 9, 2017.2 Pursuant to statute, Ramos

had one year from the date his JOS became final to file a timely PCRA petition.

Ramos filed a petition on November 28, 2017 – well within the one year limit.

Counsel was appointed and filed an amended petition, which was denied

without a hearing on May 31, 2018. This timely appeal followed.

We begin by noting, “This Court’s standard of review regarding an order

denying a petition under the PCRA is whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Kretchmer, 189 A.3d 459, 462 (Pa. Super. 2018)

(citation omitted).

In his first issue, Ramos claims his trial counsel was ineffective for failing

to file an interlocutory appeal challenging the Commonwealth’s reliance on

hearsay evidence to prove a prima facie case against him. The burden of

demonstrating ineffective assistance of counsel is well settled.

____________________________________________

2 The 30-day time limit to file an appeal expired on January 7, 2017, a Saturday. Accordingly, Monday, January 9, 2017, is the date Ramos’ sentence became final.

-3- J-S77015-18

Appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. The petitioner bears the burden of proving all three prongs of the test.

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007)

(citations omitted).

Here, Ramos asserts counsel did not consult him regarding an

interlocutory appeal after the habeas corpus hearing where the

Commonwealth relied upon hearsay. Ramos claims:

A defendant in appellant’s position would have desired an appeal from the habeas ruling because the Commonwealth’s reliance on hearsay testimony to sustain its prima facie burden of proof denied appellant of his constitutional right to procedural due process. Generally, an appeal may be taken as of right from any final order of a trial court. Pa.R.A.P. 341(a). In most circumstances, “the denial of a pre-trial writ of habeas corpus based on a lack of sufficient prima facie evidence does not constitute and appealable order.” Commonwealth v. Ricker, 120 A.3d 349, 353 (Pa. Super. 2015). However, when exceptional circumstances exist, an appeal from such an interlocutory order may be considered. Id.

Ramos’ Brief at 20. This argument fails for multiple reasons.

In the first instance, Ricker is distinguishable from the instant matter.

Ricker addressed a situation where the Commonwealth presented only

hearsay evidence to prove a prima facie case. A panel of our Court recognized

that the Commonwealth did present some direct evidence, but that evidence

was not relevant to proving any element of the crimes charged. Ricker, 120

A.3d at 356. Here, while much of the relevant evidence presented was

hearsay, the Commonwealth also presented a significant amount of direct

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evidence in the form of the images the testifying police officer, Detective

Patrick Haines, obtained from the confiscated cell phone during his forensic

examination of that cell phone. Those images of a minor female changing

clothes and of the adult female also in a changing room, were directly relevant

to proving the charges of child pornography, photographing a minor, and

invasion of privacy. Accordingly, the underlying thesis of Ramos’ claim, the

Commonwealth presented only hearsay evidence, is facially incorrect.

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