J-S16038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSE ANTONIO RAMOS

                            Appellant               No. 1153 MDA 2014


              Appeal from the Judgment of Sentence April 24, 2014
                In the Court of Common Pleas of Luzerne County
               Criminal Division at No(s): CP-40-CR-0003982-2012


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED MAY 06, 2015

       Jose Antonio Ramos appeals from the judgment of sentence entered

April 24, 2014, in the Luzerne County Court of Common Pleas. Ramos was

sentenced to a term of six to 20 years’ imprisonment following his jury

conviction for failing to comply with the registration requirements of sexual

offenders.1     On appeal, Ramos challenges the sufficiency of the evidence

supporting his conviction, as well as the trial court’s decision to permit the

attorney who prosecuted him for the underlying sex offenses to testify at his

sentencing hearing. For the reasons set forth below, we affirm.
____________________________________________


1
  See 18 Pa.C.S. § 4915. Section 4915 expired on December 20, 2012, and
was replaced by 18 Pa.C.S. § 4915.1. Section 4915.1 contains similar
language and proscribes the same conduct, but refers to the provisions of
the Sexual Offenders Registration and Notification Act (SORNA), 42 Pa.C.S.
§§ 9799.10-9799.41, which replaced Pennsylvania’s Megan’s Law effective
December 20, 2012.
J-S16038-15



       The facts underlying Ramos’s conviction are as follows.    Ramos was

scheduled to be released from prison on November 7, 2012, after serving a

27-year sentence for sexual offenses.2           Pursuant to his registration

obligations as a Megan’s Law offender, Ramos was required to provide an

address as to where he intended to live after his release. Ramos signed a

Sex Offender Registration Form, in which he attested that he was going to

live with his cousin at 955 Leggett Avenue, Bronx, New York. However, the

Pennsylvania State Police subsequently discovered that Ramos had not

spoken with his cousin in 30 years, his cousin no longer lived at that

address, and Ramos actually plannned to live in a hotel with a female friend

and her grandson.        Therefore, on the day of his release, Ramos was re-

arrested and charged with one count of failing to comply with the

registration requirements of sexual offenders.

       On January 23, 2014, a jury found Ramos guilty of the above offense.

Ramos subsequently filed a motion to set aside the verdict based upon the

Supreme Court’s decision in Commonwealth v. Neiman, 84 A.3d 603 (Pa.




____________________________________________


2
  The certified record does not include any information regarding Ramos’s
underlying sexual offenses, nor does it include the presentence investigation
report ordered in this case. However, we can glean from the sentencing
transcript that Ramos was convicted of, inter alia, involuntary deviate sexual
intercourse for his sexual abuse of a young boy. See N.T., 4/24/2014, at
10.




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2013),3 which the trial court denied.            On April 24, 2014, the trial court

imposed a standard range sentence of six to 20 years’ imprisonment.

Ramos filed a motion for reconsideration of sentence, and an amended

motion, which the trial court denied on April 30, 2014. This timely appeal

followed.4

       In his first issue, Ramos challenges the sufficiency of the evidence

supporting his conviction.5 Our review of such a claim is well-settled:


____________________________________________


3
  In Neiman, the Supreme Court held that Act 152 of 2004, which, inter
alia, modified and replaced the then-existing version of Megan’s Law,
violated the single subject rule. Neiman, supra, 84 A.3d at 605. The Court
struck the Act in its entirety, but stayed its decision for 90 days “in order to
provide a reasonable amount of time for the General Assembly to consider
appropriate remedial measures, or to allow for a smooth transition period.”
Id. at 616. Thereafter, the Legislature amended the statute to address the
decision in Neiman. See 42 Pa.C.S. § 9799.11(b)(3). The amended act
applies to, inter alia, an individual who (1) “was required to register with the
Pennsylvania State Police pursuant to this subchapter prior to December 20,
2012, and who had not fulfilled the individual’s period of registration as of
December 20, 2012;” and (2) “who between January 23, 2005, and
December 19, 2012, was … released from a period of incarceration resulting
from a conviction for a sexually violent offense[.]”            42 Pa.C.S. §§
9799.13(3)(i), (3.1)(i)(B). Therefore, the registration requirements of the
statute are applicable to Ramos.
4
  On June 10, 2014, Ramos complied with the trial court’s directive to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
5
  We note that the trial court found this issue waived because Ramos’s
concise statement was not sufficiently specific to preserve this claim on
appeal. See Trial Court Opinion, 8/22/2014, at 11. While we agree Ramos
did not specify in his concise statement how the evidence was insufficient,
we decline to find waiver here where Ramos was convicted of only one,
(Footnote Continued Next Page)


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            In reviewing sufficiency of evidence claims, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      the elements of the offense. See Commonwealth v. Bullick,
      830 A.2d 998, 1000 (Pa. Super. 2003). Additionally, to sustain a
      conviction,   the   facts    and    circumstances     which    the
      Commonwealth must prove, must be such that every essential
      element of the crime is established beyond a reasonable doubt.
      See Commonwealth v. Hargrave, 745 A.2d 20, 22 (Pa. Super.
      2000), appeal denied, 563 Pa. 683, 760 A.2d 851 (2000).
      Admittedly, guilt must be based on facts and conditions proved,
      and not on suspicion or surmise. See Commonwealth v.
      Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173 (1994). Entirely
      circumstantial evidence is sufficient so long as the combination
      of the evidence links the accused to the crime beyond a
      reasonable doubt. See id.; see also Commonwealth v.
      Chmiel, 536 Pa. 244, 247, 639 A.2d 9, 11 (1994). Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. See Commonwealth v. DiStefano, 782 A.2d
      574, 582 (Pa. Super. 2001), appeal denied, 569 Pa. 716, 806
      A.2d 858 (2002). The fact finder is free to believe all, part, or
      none of the evidence presented at trial. See Commonwealth
      v. Nicotra, 425 Pa.Super. 600, 625 A.2d 1259, 1261 (1993).

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011), appeal

denied, 44 A.3d 1161 (Pa. 2012).




                       _______________________
(Footnote Continued)

relatively straightforward charge. See Commonwealth v. Laboy, 936 A.2d
1058, 1060 (Pa. 2007) (remanding appeal to Superior Court for merits
analysis of sufficiency claim in “relatively straightforward drug case.”).
Moreover, the trial court did conclude in its opinion that the evidence was
sufficient to support the verdict. Accordingly, our appellate review is not
impeded.



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      Ramos was convicted of one count of failing to comply with the

registration of sexual offenders requirements set forth at 18 Pa.C.S. § 4915.

The statute provides, in relevant part:

      (a) Offense defined.-- An individual who is subject to
      registration under 42 Pa.C.S. § 9795.1(a) or (a.1) (relating to
      registration) or an individual who is subject to registration under
      42 Pa.C.S. § 9795.1(b) or who was subject to registration under
      former 42 Pa.C.S § 9793 (relating to registration of certain
      offenders for ten years) commits an offense if he knowingly fails
      to:

                                   ****

      (3) provide accurate information when registering under
      42 Pa.C.S. § 9795.2 or verifying an address a residence under
      42 Pa.C.S. § 9796.

42 Pa.C.S. § 4915 (emphasis supplied).         Moreover, Section 9795.2(a)

mandates, inter alia:

      (a) Registration.—

      (1) Offenders and sexually violent predators shall be required to
      register with the Pennsylvania State Police upon release from
      incarceration, upon parole from a State or county correctional
      institution or upon the commencement of a sentence of
      intermediate punishment or probation. For purposes of
      registration, offenders and sexually violent predators
      shall provide the Pennsylvania State Police with all
      current or intended residences[.]

                                   ****

      4) This paragraph shall apply to all offenders and sexually violent
      predators:

      (i) … Where the offender or sexually violent predator is
      scheduled to be released from a State correctional facility
      or county correctional facility because of the expiration of the


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     maximum term of incarceration, the Department of
     Corrections or county correctional facility shall collect the
     information from the offender or sexually violent predator no
     later than ten days prior to the maximum expiration date.
     The registration information shall be forwarded to the
     Pennsylvania State Police.

42 Pa.C.S. § 9795.2(a)(1), (4)(i) (emphasis supplied).     The statute also

defines a residence as “[a] location where an individual … intends to be

domiciled for 30 consecutive days or more during a calendar year[,]” and

may include a “temporary place of abode” such as a “homeless shelter or

park, where the individual is lodged.”   42 Pa.C.S. § 9792.   Therefore, the

Commonwealth was required to prove beyond a reasonable doubt that

Ramos knowingly failed to provide accurate information regarding his

intended residence upon release from prison.

     Ramos argues the evidence was insufficient to support his conviction

because he did intend to reside at 944 Leggett Avenue “if in fact his family

had still resided there.” Ramos’s Brief at 15, 17. Moreover, he asserts his

understanding was that “if he did not find a place to stay, he had 48 hours

to find another place and register with the state police.” Id. at 15. See 42

Pa.C.S. § 9795.2(a)(2)(i) (“Offenders … shall inform the Pennsylvania State

Police within 48 hours of … [a]ny change of residence or establishment of an

additional residence or residences.”). Because he was immediately arrested

upon his release from prison, Ramos contends he had no opportunity to find

another residence upon learning that his family no longer resided at the

Leggett Avenue address.



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      Our review of the record reveals ample support for the jury’s verdict.

Indeed, the evidence was sufficient for the jury to conclude that Ramos

never intended to reside at 944 Leggett Avenue, and, therefore, knowingly

provided inaccurate information to the Pennsylvania State Police prior to his

release.

      The testimony at trial revealed the following. Francis Depiero, a

counselor at SCI-Dallas, met with Ramos four times between October 1,

2012 and October 11, 2012, to help him prepare for reintegration in society,

and complete the required Megan’s Law registration paperwork.      As noted

above, Ramos was scheduled for release on November 7, 2012.

      During their first meeting, Depiero told Ramos that Ramos needed to

provide an address where he would be living after his impending release so

that he could be registered for Megan’s Law purposes.      He also informed

Ramos that he could help Ramos find a shelter if he had nowhere else to go.

Ramos told Depiero that he intended to live in an apartment at 944 Leggett

Avenue.    Depiero repeated this information to Bernadette Cotterman, the

records specialist at SCI-Dallas. After Cotterman realized the address was

an apartment complex, she requested Depiero obtain a more specific

address for Ramos.   Ramos then indicated that he would be living on the

third floor of the apartment building. See N.T., 1/21/2014, at 55-59.

      On October 11, 2012, Ramos met with Cotterman and Depiero, who

provided him with a “Megan’s Law Sexual Offender Registration” form that

explained his registration requirements.   Cotterman read Ramos the form,

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which Ramos acknowledged he understood and signed.           The form detailed

Ramos’s intention to reside at 944 Leggett Avenue, 3rd floor, upon his

release, and listed the name of his cousin, “Mildred Otero-Valentine,” as the

person with whom he intended to reside. See id. at 75-86.

       Thereafter, the Pennsylvania State Police contacted    the   New   York

Police Department (NYPD) to confirm Ramos’s intended residence.           Upon

their inspection of the apartment building, the NYPD learned that none of the

residents knew Ramos, but there were two vacant apartments in the

building, one of which was on the third floor.   However, the owner of the

building, James Gisondi, confirmed that he had never been contacted by

Ramos, and had never agreed to lease an apartment to Ramos. See id. at

91-96, 151-152.

       After further investigation, the NYPD discovered that Ramos’s cousin,

Mildred Lebron had once lived on the third floor of the building.6

Nevertheless, Lebron confirmed that (1) she had not lived at 944 Leggett

Avenue since 1983; (2) Ramos had never lived there with her and her

family; (3) she had not spoken to Ramos for more than 30 years prior; and




____________________________________________


6
  The detectives also learned that Lebron’s mother’s maiden name was
“Otero,” and both her father’s and brother’s first name was “Valentine.”
N.T., 1/21/2014, at 100. Lebron testified that she had never used the name
“Mildred Otero-Valentine.” Id. at 107.




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(4) she had not given Ramos permission to live with her after his release

from prison. Id. at 107-108, 115.

     Lebron also testified that Ramos began calling her collect from prison

after November 7, 2012.     When she refused to accept the calls, he wrote

her a letter, which she received on December 27, 2012.            In the letter,

Ramos stated that he had “no idea that [she] no longer lived at 944 Leggett

Avenue” but that he “had no intentions of living with [her].” Id. at 115,

116 (emphasis supplied). Rather, he wrote, “I just gave your address in

order to go and register with the police for I was really going to go down to

Miami to visit my parents and father’s grave site.” Id. at 115.

     In   mid-October    2012,   the   Department    of   Corrections    began

intercepting Ramos’s mail. During that time, Corrections Captain Mark Pall

intercepted a letter Ramos received from Janet Hicks, a woman with whom

he had been corresponding “[a]lmost on a daily basis.” Id. at 163. Ramos

would type a letter to Hicks, who would then handwrite a response on the

same letter. On one of the intercepted letters, apparently written by Ramos

sometime before September 30, 2012, Ramos instructed Hicks to meet him

at the New York City Port Authority bus terminal on November 7, 2012, the

date of his scheduled release, with her grandson, Tony. The letter further

stated:

     These people will not release me until I have some place for me
     to go to …. So please make sure you have a hotel room for us on
     November 7th, 2012 at the Mayflower [Hotel] or at Ye Olde
     Carlson Arms Hotel[.]


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Id. at 170.      Ramos wrote he intended to visit his parents’ grave site in

Miami, and stated that he, Hicks, and Tony could take a trip there after his

release. Regarding Hicks’s grandson, Ramos also wrote the following:

       As for your grandson Tony, you mentioned that you spoke with
       him on the phone and that he was ready to leave town with me.
       Did you get his father’s approval for him to go with us.

       As for him writing to me, all he has to do is go to the library near
       his home and write a nice long letter about himself. Tell him on
       the phone that he is to let me know what kind of hobbies that he
       has and what are his favorite things that he likes to do. Also, if
       you have any recent pictures of him, please send them to me.

Id. at 172.7 Nowhere in the letter did Ramos mention the Leggett Avenue

address.

       Ramos testified, however, that he believed his family members,

including his cousin, still lived at the 944 Leggett Avenue address, and he

“was under the impression [he] had to give an address … [or] they weren’t

going to let [him] go.” Id. at 203, 204. He also believed that if he did not

have a place to stay, he “had 48 hours to go find another place and then to

register with the state police.”        Id. at 206.   With regard to the letter he

wrote the Hicks, Ramos stated he asked her to get a hotel room so he would


____________________________________________


7
   We note that the jury was not informed of the nature of Ramos’s
underlying sexual assault convictions. Rather the parties agreed to provide
the jury with the stipulation that Ramos “is an individual who is required by
law to register his residence with the Pennsylvania State Police.” Id. at 51-
52. Through the testimony, the jury also learned that Ramos had been
incarcerated for 27 years for a sexual offense.




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“at least have some place to go” if he could not stay with his cousin. Id. at

210. Further, he explained Hicks “has a hard time dealing with society” and

that as far as he knew, her grandson, Tony, “was a figment of [Hicks’s]

imagination.” Id. at 211. However, Ramos admitted that he did not try to

contact his cousin before his release date, and that he had not spoken to his

family for 35 years. See id. at 216-221.

     Ramos also presented the testimony of Rabbi Howard Cohen, whom he

befriended when he was housed at SCI Graterford.        Rabbi Cohen testified

that he remained in contact with Ramos and had offered to drive him to his

intended residence the day of Ramos’s release from prison.        Rabbi Cohen

further testified that Ramos told him he planned to go to the Leggett Avenue

address. See id. at 120-124.

     Viewing   this   testimony   in   the   light   most   favorable   to    the

Commonwealth, we conclude the jury had more than sufficient evidence to

convict Ramos of failing to comply with registration requirements.           It is

undisputed that Ramos was required to register as a sexual offender, and

was subject to the registration requirements set forth in Section 9795.2.

Further, Ramos’s failure to contact any of his family members prior to his

release, to inquire whether he could live with them at the 944 Leggett

Avenue apartment, as well as his stated intentions to reside elsewhere in his

letters to Hicks and Lebron, support the jury’s determination that Ramos

knowingly provided inaccurate information to the State Police, that is, he

never intended to reside at the Bronx apartment. While Ramos testified to

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the contrary, the jury acted within its discretion when it rejected his self-

serving testimony. See Moreno, supra. Accordingly, Ramos is entitled to

no relief regarding his first issue.

       Next, Ramos contends that, during the sentencing hearing, the trial

court abused its discretion when it permitted the Commonwealth to present

as a witness Stuart Grabois, Esquire, the attorney who prosecuted him for

the underlying sex offenses. This claim challenges the discretionary aspects

of Ramos’s sentence.

       Because the right to appeal the discretionary aspects of a sentence is

not absolute, in order to reach the merits of such a claim, this Court must

first determine:

       (1) whether appellant has filed a timely notice of appeal; (2)
       whether the issue was properly preserved at sentencing or in a
       motion to reconsider and modify sentence; (3) whether
       appellant’s brief has a fatal defect; and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).       Here, although Ramos did not include this claim in

either his original or amended post-sentence motion, he objected to

Garbois’s testimony during the sentencing hearing, and included the claim in

his Pa.R.A.P. 1925(b) concise statement.8          Therefore, we find Ramos has
____________________________________________


8
  Ramos also argues in this brief that the trial court punished him more
harshly because he chose to go to trial. See Ramos’s Brief at 3, 21.
However, that claim was not raised in either of his motions for
(Footnote Continued Next Page)


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preserved this claim for our review, and proceed to determine whether he

has set forth a substantial question that his sentence is inappropriate under

the Sentencing Code.         See Commonwealth v. Titus, 816 A.2d 251, 255

(Pa. Super. 2003).

       A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation   omitted).         Here,    Ramos       contends      the   court   “considered

impermissible factors and relied upon erroneous information that would

render his sentence invalid.”         Ramos’s Brief at 19.         Such a claim raises a

substantial question. See Commonwealth v. Macias, 968 A.2d 773, 776

(Pa.   Super.   2009)       (“[A]n    allegation    that   the    court   considered   an

impermissible sentencing factor raises a substantial question.”) (citation

omitted).

       In support of his claim, Ramos argues the trial court “gave improper

weight to the testimony of Grabois, who was neither the prosecutor, the

victim or witness in this matter[.]” Ramos’s Brief at 19. However, the trial

court specifically denied this claim in its opinion, stating:

                       _______________________
(Footnote Continued)

reconsideration of his sentence, during the sentencing hearing, or in his Rule
1925(b) concise statement. Accordingly, it is waived. Dunphy, supra.



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       We took Mr. Grabois’s testimony into consideration when
       fashioning a sentence along with all other testimony, evidence,
       and argument provided at the time of the sentencing hearing,
       including, most importantly, the PSI. Moreover, aside from Mr.
       Grabois calling [Ramos] a “monster,” he said nothing else that
       we did not already know having listened to the testimony
       presented at trial or having gleaned from the PSI.

Trial Court Opinion, 8/22/2014, at 5.9

       Furthermore, as noted above, the trial court had the benefit of a

presentence investigation report,10 and imposed a sentence within the

standard range of the sentencing guidelines.       It is well-established that

“[s]entencing is a matter vested in the sound discretion of the judge, and

will not be disturbed on appeal absent a manifest abuse of discretion.”

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009). Having found no abuse

of discretion on the part of the trial court, we conclude that Ramos’s second

issue also fails.

       Judgment of sentence affirmed.



____________________________________________


9
  We note the transcript from the sentencing hearing demonstrates the trial
court did not give undue weight to Grabois’s characterization of Ramos as a
“monster.” When Ramos’s attorney objected to Grabois’s use of the term,
the trial court stated “I guess it’s his opinion. … It is argumentative and for
sentencing purposes.” N.T., 4/24/2014, at 12.
10
   See Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)
(citation omitted) (holding that where trial court had the benefit of a
presentence investigation report, we will presume it was “aware of all
appropriate sentencing factors and considerations.”)



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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