Com. v. Ramos, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JESUS RAMOS,
Appellant No. 2771 EDA 2015
Appeal from the PCRA Order September 4, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0709251-2006
CP-51-CR-0803171-2005
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 05, 2016
Appellant, Jesus Ramos, appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546, without a hearing. We affirm.
We take the following history of this case from the PCRA court’s
October 22, 2015 opinion, and our independent review of the certified
record. On May 18, 2006, following a waiver trial in case number CP-51-CR-
0803171-2005, the trial court convicted Appellant of aggravated assault and
related charges for his July 23, 2005 assault of his ex-girlfriend. On
September 26, 2006, prior to the court imposing sentence on the
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*
Retired Senior Judge assigned to the Superior Court.
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convictions, Appellant pleaded guilty in case number CP-51-CR-0709251-
2006 to the charges of forgery and conspiracy. These charges arose from
Appellant’s April 26, 2006 attempt to cash two checks stolen from a daycare
center. The trial court immediately sentenced Appellant in the aggravated
assault and forgery cases to an aggregate term of five years’ non-reporting
probation, plus restitution in the amount of $1,102.00.
On August 6, 2009, Appellant was convicted in a subsequent case of
third degree murder, conspiracy, and unlawful possession of a firearm, for
his role as the driver in a drive-by shooting. (See N.T. VOP Hearing,
11/03/09, at 4-6). In approximately September, 2009, Appellant was
sentenced on these convictions to a term of incarceration of not less than
seven-and-one-half nor more than fifteen years. (See id. at 18).
On November 3, 2009, the trial court, which had presided over the
aggravated assault and forgery cases, held a violation of probation (VOP)
hearing. The court sentenced Appellant to an aggregate term of
incarceration of not less than eight-and-one-half nor more than seventeen
years, consecutive to the sentence imposed in Appellant’s murder case.
(See id. at 46-47). Appellant timely appealed, and this Court affirmed the
VOP sentence on July 28, 2011. (See Commonwealth v. Ramos, 32 A.3d
284 (Pa. Super. 2011)). On January 12, 2012, the Pennsylvania Supreme
Court denied further review. (See Commonwealth v. Ramos, 37 A.3d
1195 (Pa. 2012)).
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On September 18, 2012, Appellant filed a timely pro se first PCRA
petition. On July 1, 2013, the court appointed counsel, who filed an
amended petition on November 9, 2014. After providing Rule 907 notice, 1
see Pa.R.Crim.P. 907(1), the court denied the petition on September 4,
2015, without a hearing. Appellant timely appealed.2
Appellant raises two questions for this Court’s review.
I. Whether the [PCRA court] was in error in denying
Appellant’s PCRA petition without an evidentiary hearing on the
issues raised in the amended PCRA petition regarding [VOP]
counsel’s ineffectiveness[?]
II. Whether the [PCRA court] was in error in not granting
relief on the PCRA petition alleging [VOP] counsel was
ineffective[?]
(Appellant’s Brief, at 8).
Our review of a PCRA court’s decision is limited to
examining whether the PCRA court’s findings of fact are
supported by the record, and whether its conclusions of law are
free from legal error. We view the findings of the PCRA court
and the evidence of record in a light most favorable to the
prevailing party. With respect to the PCRA court’s decision to
deny a request for an evidentiary hearing . . . such a decision is
within the discretion of the PCRA court and will not be
overturned absent an abuse of discretion. The PCRA court’s
credibility determinations, when supported by the record, are
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1
The court’s September 4, 2015 order states that it sent a Rule 907 notice
to Appellant. (See Order, 9/04/15, at 1). Although the certified record does
not contain a copy of it, we will presume that the notice was sent where
Appellant does not contend otherwise.
2
Appellant filed a timely Rule 1925(b) statement on October 20, 2015, and
the court filed an opinion on October 22, 2015. See Pa.R.A.P. 1925(a).
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binding on this Court; however, we apply a de novo standard of
review to the PCRA court’s legal conclusions.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations and
quotation marks omitted).
In his first issue, Appellant challenges the PCRA court’s decision to
deny his PCRA petition without an evidentiary hearing. (See Appellant’s
Brief, at 17-18). Appellant’s issue is waived.
[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that
claim is waived. See [] Pa.R.A.P. 2119(a) (each point treated in
an argument must be “followed by such discussion and citation
of authorities as are deemed pertinent”). It is not the obligation
of [an appellate c]ourt . . . to formulate Appellant’s arguments
for him.
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,
562 U.S. 906 (2010) (case citations omitted).
Here, Appellant fails even to identify what issues he raised in the PCRA
petition for which a hearing was required. (See Appellant’s Brief, at 17-18).
Further, he provides no pertinent discussion or citation of legal authority in
support of his claim that the PCRA court erred in denying his petition without
conducting an evidentiary hearing, and only cites cases for general legal
principles. (See id.); see also Pa.R.A.P. 2119(a)-(b). In fact, although
Appellant acknowledges that there is no absolute right to an evidentiary
hearing on a PCRA petition, he fails to set forth any pertinent discussion
explaining why he established a right to such a hearing in his case. (See
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Appellant’s Brief, at 17-18). Therefore, because it is not our role to develop
an argument on his behalf, we deem Appellant’s first issue waived. 3 See
Johnson, supra at 924.
In his second claim, Appellant challenges the court’s denial of his PCRA
petition, which alleged the ineffective assistance of VOP counsel. (See
Appellant’s Brief, at 18-21). Appellant’s claim is waived and would lack
merit.
We observe that the argument section of Appellant’s brief addressing
his second issue also fails to meet the requirements of Rule 2119. (See
Appellant’s Brief, at 18-21); Pa.R.A.P. 2119(a)-(b). Although Appellant
provides citation to legal authority setting forth boilerplate law for ineffective
assistance of counsel,4 (see Appellant’s Brief, at 18-19), he utterly fails to
provide pertinent citation and discussion in support of his bald claims that
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3
Also, based on our independent review of the record, we conclude that it
supports the decision of the PCRA court, which had presided over Appellant’s
aggravated assault trial, his forgery and conspiracy guilty plea, and the VOP
hearing, to deny his petition without an evidentiary hearing. See Mason,
supra at 617. Therefore, this claim would lack merit.
4
Appellant also cites 42 Pa.C.S.A. § 9771(c) in support of his claim that
“[n]othing in the record lends support to the notion that it was ‘essential’ to
incarcerate Appellant to ‘vindicate the authority of the court.’” (Appellant’s
Brief, at 20) (citing 42 Pa.C.S.A. § 9771(c)(3)). However, this Court already
has found that “[Appellant’s] sentence was not excessive or manifestly
unreasonable.” (Commonwealth v. Ramos, No. 3584 EDA 2009,
unpublished memorandum, at *6 (Pa. Super. filed July 28, 2011)).
Therefore, any attempt by Appellant to challenge VOP counsel’s
representation on the basis of his sentence, would lack merit. See
Fitzgerald, infra at 910-11.
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counsel’s actions were unreasonable and prejudicial. (See id. at 18-21).
Therefore, Appellant’s issue is waived. See Johnson, supra at 924.
Moreover, it would not merit relief.
To prevail on a claim that counsel was
constitutionally ineffective, the [Appellant] must
overcome the presumption of competence by showing
that: (1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and (3) but for counsel’s ineffectiveness, there
is a reasonable probability that the outcome of the
challenged proceedings would have been different. A
failure to satisfy any prong of [this] test[, also referred to
as the Pierce[a] test,] . . . will require rejection of the
claim.
[a]
Commonwealth v. Pierce, . . . 527 A.2d
973 ([Pa.] 1987).
In accord with these well-established criteria for
review, [an appellant] must set forth and individually
discuss substantively each prong of the [Pierce ] test.
If an appellant fails to prove by a preponderance of the
evidence any of the Pierce prongs, the Court need not address
the remaining prongs of the test. To establish the first prong, an
appellant must demonstrate that his claim has arguable merit.
In evaluating the second prong, whether counsel had a
reasonable basis for his action, we do not question whether
there were other more logical courses of action which counsel
could have pursued: rather, we must examine whether counsel’s
decisions had any reasonable basis. Finally, to prove the third
prong, prejudice, the appellant must show that but for the act or
omission in question, the outcome of the proceedings would
have been different.
Commonwealth v. Fitzgerald, 979 A.2d 908, 910-11 (Pa. Super. 2009),
appeal denied, 990 A.2d 727 (Pa. 2010) (citations and quotation marks
omitted).
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Here, the argument section of Appellant’s brief utterly fails to “set
forth and individually discuss substantively each prong of the [Pierce]
test.” Id. (citation omitted) (emphasis added). Instead, Appellant merely
sets forth meager record citation allegedly evidencing counsel’s ineffective
representation, and then concludes he is entitled to relief because counsel
had no reasonable basis for his actions. (See id. at 19-21). Moreover, our
independent review of the certified record confirms the PCRA court’s finding
that his arguments do not merit relief.
For example, Appellant argues that counsel was ineffective for failing
to notify the court that Appellant had not received notice of the VOP hearing,
and therefore was unable to present witnesses. (See Appellant’s Brief, at
19-20). However, as observed by the PCRA court, “despite his claims that
he was unable to contact witnesses for his VOP hearing, [Appellant’s]
mother and cousin were present to testify on his behalf at his November 3,
2009 hearing.” (PCRA Court Opinion, 10/22/15, at 6; see also N.T. VOP
Hearing, at 27-34). Therefore, this argument lacks merit.5 See Fitzgerald,
supra at 910.
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5
Additionally, as observed by the PCRA court, Appellant’s five proposed
witnesses provided affidavits dated well-beyond the date of the VOP hearing,
and would have given testimony that merely duplicated that offered by
Appellant’s mother and cousin. (See PCRA Ct. Op., at 6; see also
Memorandum in Support of Amended PCRA Petition, at Appendix A). Also,
importantly, the court stated that this duplicative testimony would not have
changed its sentencing decision. (See PCRA Ct. Op., at 6-7). Therefore,
(Footnote Continued Next Page)
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Appellant also maintains that “counsel was ineffective for failing to
object to the fact that the [trial c]ourt did not have any presentence reports
before [it] when it sentenced [him].” (Id. at 20). However, as previously
observed by this Court, “the probation violation court had the benefit of a
pre-sentence investigation report.” (Commonwealth v. Ramos, No. 3584
EDA 2009, unpublished memorandum, at *5) (citing N.T. VOP Hearing, at 4)
(case citation omitted); (see also PCRA Ct. Op., at 5-6). Therefore,
Appellant’s claim lacks underlying merit. See Fitzgerald, supra at 910-11.
Based on the foregoing, and after our independent review, we
conclude that the PCRA court properly denied Appellant’s petition after
finding that he failed to meet his burden of pleading and proving the three
prongs of the Pierce test. See Fitzgerald, supra at 910-11. Appellant’s
second issue is waived and would not merit relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2016
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(Footnote Continued)
even if this allegation had merit, Appellant was not prejudiced by his alleged
inability to present the proposed witnesses, and the claim would fail. See
Fitzgerald, supra at 910-11.
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