J-S07002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 289 EDA 2017


            Appeal from the PCRA Order Entered January 6, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0000561-2008


BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 16, 2018

      Appellant, Jesus Ramos, appeals from the post-conviction court’s

January 6, 2017 order denying, without a hearing, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In August of 2009, Appellant was convicted, following a non-jury trial,

of third-degree murder, criminal conspiracy, and carrying a firearm without a

license. This Court previously summarized the facts underlying Appellant’s

convictions, as follows:

            Carlos Ruiz (“Ruiz”), a drug dealer, had been fighting over
      drug-dealing “turf” with Marcos Martinez (“the victim”). Ruiz was
      badly beaten by the victim and vowed to take revenge. On
      January 3, 2007, appellant drove Ruiz in a burgundy Toyota
      Camry to the 2800 block of North Swanson Street where the
      victim lived. Ruiz spotted the victim and directed [A]ppellant to
      slow the car down so the victim would think it was someone
      coming to purchase drugs and draw him to the car. Appellant
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     complied and when the vehicle stopped, Ruiz exited the vehicle
     and attempted to shoot the victim.           However, no bullets
     discharged from the gun as it was locked. The victim fled inside
     a neighbor’s house, and Ruiz shot two bullets through the door.
     One of these bullets fatally injured the victim. Ruiz ran back to
     the Camry, and [A]ppellant drove him away from the scene.
     Neighbors called 911 and reported the shooting, describing the
     getaway car.

            Appellant’s ex-girlfriend, Alison Ramirez (“Ramirez”),
     testified to events that occurred shortly before the shooting.
     Ramirez explained that on the day in question, [A]ppellant arrived
     at her sister’s home located just three blocks from North Swanson
     Street. Ramirez had previously obtained a protection from abuse
     (“PFA”) order, so she telephoned 911 upon seeing [A]ppellant.
     Ruiz, whom Ramirez recognized, then arrived in a burgundy
     Camry, and [A]ppellant got in the passenger seat. The vehicle
     left but returned shortly thereafter, and [A]ppellant got out of the
     car. Police Officers John Boyle and Jason Forsythe responded to
     the 911 call. Upon arrival, Ramirez pointed to the burgundy
     Camry at the corner and identified [A]ppellant as the subject of
     the PFA order. Appellant observed the police and went back to
     the Camry; however, Ruiz moved to the passenger seat, and
     [A]ppellant got in the driver’s seat and drove off.

            While the police were interviewing Ramirez, they received
     a flash report that a shooting had occurred a few blocks away in
     the 2800 block of Swanson Street. Upon arrival, the victim was
     lying outside the front door of his neighbor’s home with a bullet
     through his brain. Investigators found two fired cartridge casings
     and two fired bullets nearby. Officers Boyle and Forsythe heard
     over the police radio that the perpetrators had fled in a burgundy
     Toyota Camry -- the same car that they had just seen [A]ppellant
     and Ruiz in minutes earlier a few blocks away. The officers
     returned to Ramirez’[s] home and learned that [A]ppellant lived
     in the 2900 block of Waterloo Street; upon arrival, the officers
     saw a burgundy Camry parked across from [A]ppellant’s home. A
     computer check showed that the vehicle was registered to a
     woman who lived on Horrocks Street.

           In the meantime, [A]ppellant telephoned Ramirez and told
     her that he had just shot someone. Appellant explained that the
     gun locked as he was trying to shoot, but he managed to get off
     two shots through the door of a house.          Unbeknownst to
     [A]ppellant, Ramirez’[s] sister, Marangeli Rivera (“Rivera”), was

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     listening on the other end of the phone. Appellant pleaded with
     Ramirez to meet with him; she agreed but then hung up the
     telephone and called 911 to report what she had just heard.

            The police instructed Ramirez to go to the police station.
     Ramirez complied, with her sister accompanying her. While
     Ramirez was giving a statement to the detectives, Rivera had to
     leave to pick up her children at school. When she and the children
     arrived home, she saw [A]ppellant standing on the corner. Rivera
     called 911 and the police arrived to arrest [A]ppellant for the
     assault/robbery he had committed on Ramirez the day before and
     for his continuing violation of the PFA order.

           Detective Phillip Nardo testified that he took a statement
     from [A]ppellant upon his arrest after [A]ppellant waived his
     Miranda1 rights. Appellant detailed the nature and extent of his
     involvement in the shooting. Appellant explained that Ruiz had a
     previous altercation with the “boys on Swanson Street” over drug
     dealing and knew that Ruiz wanted to “get back at them.” For
     weeks after the fight, Ruiz asked [A]ppellant to give him a gun so
     he could “fuck these guys up.” Three days before the shooting,
     Ruiz told [A]ppellant that he had secured a gun and had gone over
     to Swanson Street “to shoot” the victim but did not do so.
        1   Miranda v. Arizona, 86 S.Ct. 1602 (1966).

            On the day of the murder, [A]ppellant agreed to go with
     Ruiz to Swanson Street to “get these mother fuckers.” While in
     the car, Ruiz showed [A]ppellant the gun that he was carrying and
     [A]ppellant stated, “you are going to kill this mother fucker with
     that.” Appellant then admitted that he drove Ruiz to Swanson
     Street and explained that he “drove real slowly. I wanted to make
     it look like a buy.” Appellant stated that Ruiz had the gun right in
     his lap. When Ruiz spotted the victim, [A]ppellant followed his
     instruction to reverse the car slowly and stop. Ruiz then got out
     of the car and attempted to shoot the victim, but the gun did not
     fire. Ruiz then fired two bullets through the front door, jumped
     back into the Camry, and yelled to [A]ppellant, “get off the fucking
     block.” Appellant obeyed and drove off “real fast.”

           The police also obtained a statement from Amil Gonzalez,
     the victim’s neighbor who lived at 2837 North Swanson Street. In
     his January 5, 2008 statement to the police, Gonzalez averred that
     he was outside of his home when he saw the victim walking
     towards him from the other end of the street. Gonzalez saw a
     burgundy car coming up the street at a high rate of speed. The

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      car stopped in front of his house and the passenger got out. The
      victim then ran into Gonzalez’[s] house and closed the door. The
      passenger stood by the car and attempted to fire, but the gun
      misfired. The man then fired two shots at the door, returned to
      the car, and left the scene. Gonzalez found the victim lying behind
      the door of his home.

             The police subsequently showed Gonzalez a photo array; he
      identified Ruiz as the person who got out of the burgundy car and
      shot at his house.       When asked if he was certain of his
      identification, Gonzalez answered affirmatively. Gonzalez also
      recounted that Ruiz had sustained an earlier beating at the hands
      of the victim.2
         2At the time of trial, Gonzalez was serving a federal prison
         sentence. He testified that at the time of the shooting he
         was inside his house with his wife, Aurelia Delgado.
         Gonzalez testified that he heard two gunshots but denied
         seeing who shot the victim. However, in a statement to the
         police on January 5, 2008, Gonzalez gave a different version
         of events.

          The medical examiner testified that the victim died of a gunshot
      wound to the brain. Police Officer Ernest Bottomer of the Firearms
      Identification Unit testified that the cartridges and bullets came
      from the same gun. He also stated that the cartridges found on
      the scene were consistent with accounts of the shooting. Counsel
      stipulated that [A]ppellant did not have a license to carry
      concealed weapons.

         Prior to trial, [A]ppellant moved to suppress the statement he
      gave to the police. A hearing was held and the motion was denied.
      Following a joint bench trial with co-defendant Ruiz, both men
      were convicted of third degree murder, conspiracy, and VUFA. On
      October 29, 2009, [A]ppellant was sentenced to concurrent terms
      of 7½ to 15 years’ imprisonment for third[-]degree murder and
      conspiracy; no further penalty was imposed for [carrying a firearm
      without a license].

Commonwealth v. Ramos, No. 155 EDA 2011, unpublished memorandum

at 1-6 (Pa. Super. filed Feb. 15, 2012) (citations to the record omitted).

      Appellant did not file a timely direct appeal from his judgment of

sentence; however, he filed a PCRA petition seeking the reinstatement of his

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direct appeal rights, which was granted. He then filed a direct appeal nunc

pro tunc, and this Court affirmed his judgment of sentence. See Ramos,

supra; see also Commonwealth v. Ramos, 46 A.3d 817 (Pa. Super. 2012)

(unpublished memorandum).           Our Supreme Court denied Appellant’s

subsequent     petition   for   allowance   of   appeal   on   July   16,    2012.

Commonwealth v. Ramos, 48 A.3d 1248 (Pa. 2012).

      Appellant filed a timely PCRA petition on July 30, 2012. Counsel was

appointed, and filed an amended petition on Appellant’s behalf alleging that

Appellant’s trial counsel was ineffective for not calling Appellant as a witness

at the pretrial suppression hearing. On September 23, 2016, the PCRA court

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition.

After receiving no response from Appellant, the court issued an order

dismissing his petition on January 6, 2017. Appellant filed a timely notice of

appeal, and he also timely complied with the court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The PCRA court

issued a Rule 1925(a) opinion on August 15, 2017. Herein, Appellant raises

one issue for our review:

      I.     Did the [PCRA] court err in denying [A]ppellant an
             evidentiary hearing when … [A]ppellant raised a material
             issue of fact that trial defense counsel was ineffective in
             advising … [A]ppellant not to testify at [the hearing on] the
             motion to suppress [A]ppellant’s alleged confession to
             police?

Appellant’s Brief at 2.




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      We begin by noting that “[t]his Court’s standard of review from the grant

or denial of post-conviction relief is limited to examining whether the lower

court’s determination is supported by the evidence of record and whether it is

free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.

1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.

1995)).   Where, as here, a petitioner claims that he received ineffective

assistance of counsel, our Supreme Court has directed that the following

standards apply:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
      “Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s performance
      was deficient and that such deficiency prejudiced him.”
      [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
      886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct.
      2053 (1984)]). In Pennsylvania, we have refined the Strickland
      performance and prejudice test into a three-part inquiry. See
      [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
      1987)]. Thus, to prove counsel ineffective, the petitioner must
      show that: (1) his underlying claim is of arguable merit; (2)
      counsel had no reasonable basis for his action or inaction; and (3)
      the petitioner suffered actual prejudice as a result.
      Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
      “If a petitioner fails to prove any of these prongs, his claim fails.”
      Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
      260 (2013) (citation omitted). Generally, counsel’s assistance is
      deemed constitutionally effective if he chose a particular course of
      conduct that had some reasonable basis designed to effectuate his
      client's interests. See Ali, supra. Where matters of strategy and
      tactics are concerned, “[a] finding that a chosen strategy lacked
      a reasonable basis is not warranted unless it can be concluded
      that an alternative not chosen offered a potential for success

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       substantially greater than the course actually pursued.” Colavita,
       606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
       omitted). To demonstrate prejudice, the petitioner must show that
       “there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceedings would have
       been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
       607, 613 (2012) (quotation, quotation marks, and citation
       omitted). “‘[A] reasonable probability is a probability that is
       sufficient to undermine confidence in the outcome of the
       proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
       Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
       (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). “Furthermore,

a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA

court can decline to hold a hearing if there is no genuine issue concerning any

material fact and the petitioner is not entitled to post-conviction collateral

relief, and no purpose would be served by any further proceedings.”

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa. Super. 2007) (citing

Pa.R.Crim.P. 907(1); Commonwealth v. Hardcastle, 701 A.2d 541 (Pa.

1997)).

       Here, Appellant contends that the PCRA court erred by not conducting

an evidentiary hearing on his claim that trial counsel was ineffective for

advising him not to testify at the suppression hearing. According to Appellant,

the discussion in “his pro se PCRA [p]etition shows that his statement was

coerced by the police and taken in violation of his constitutional rights.”

Appellant’s Brief at 7.1 Appellant further argues that his trial counsel had no
____________________________________________


1Notably, Appellant does not set forth, in the Argument section of his brief,
any discussion of the facts supporting his coercion claim. However, he



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reasonable basis for advising him not to testify at the suppression hearing,

where Appellant’s “testimony would have proved that his statement was

coerced and secured in violation of his state and Federal Constitutional rights.”

Id. at 6. Finally, Appellant avers that he “was prejudiced by counsel’s advice

because he lost the opportunity to have the statement suppressed and not

used against him at trial and therefore lost the opportunity to win an

acquittal.” Id. According to Appellant, he has demonstrated that a genuine

issue of material fact exists regarding whether trial counsel rendered deficient

representation in this respect, thus warranting a PCRA hearing.

       In rejecting Appellant’s ineffectiveness claim without a hearing, the

PCRA court reasoned as follows:

              As noted above[,] Appellant gave two inculpatory
       statements which were introduced at trial: One to police and one
       to Alison Ramirez. In the statement to Ms. Ram[i]rez, Appellant
       claimed to be the shooter. In the police statement[,] Appellant
       said that he was the driver and the co-defendant was the shooter.
       The greater weight of the evidence convinced this [c]ourt that the
       co-defendant was the shooter and Appellant, knowing his
       passenger’s intent was, in fact[,] the driver. Accordingly, even
       had Appellant testified [at the suppression hearing] and convinced
       the suppression court to grant the motion [to suppress his
____________________________________________


attaches to his brief a copy of several pages of his pro se petition. Therein,
Appellant alleges, inter alia, that he was held for several hours before and
during his interrogation, and he was at no point provided with food, water, or
access to a toilet. Appellant also claims that the officers who conducted the
interrogation called him derogatory names, were physically confrontational,
and ignored his repeated requests for an attorney. According to Appellant, he
only provided his statement “[a]fter thirty plus hours of detention and
isolation[,]” and after being told that he “would be given food, a soda, [and]
whatever he needed” if he provided the statement. See Appellant’s Brief at
C-4 (reproduction of Appellant’s Pro Se PCRA Petition, 7/30/12, at 7).

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       statement to police], this [c]ourt still would have heard Appellant
       confess to being the shooter. The end result would not have
       changed. Under the facts of this case[,] both the shooter and the
       accomplice/driver were guilty of [t]hird[-d]egree [m]urder and
       the related offenses. The sentences would not have changed.
       Therefore[,] no hearing was necessary before this [c]ourt denied
       the baseless PCRA [p]etition.

PCRA Court Opinion, 8/15/17, at 6-7.

       Aside from the bald assertion that he would have ‘won an acquittal’ if

his statement to police had been suppressed, Appellant offers no developed

discussion to refute the PCRA court’s contrary conclusion.        Moreover, our

review of the record supports the PCRA court’s determination that the

evidence admitted at trial, aside from Appellant’s confession to police, proved

Appellant’s involvement in the murder of Marcos Martinez, especially

Appellant’s confession to Ms. Ramirez.2 Accordingly, we ascertain no abuse

____________________________________________


2 Our conclusion in this regard is not swayed by Appellant’s “Petition to
Remand to Trial Court for Consideration of Newly Discovered Evidence,” which
Appellant filed with this Court on April 4, 2018. Therein, Appellant claims to
have discovered, “sometime in March 2018,” that “Detective Phil Nordo[,] who
took [] [A]ppellant’s alleged confession has been suspended with intent to
[d]ismiss for misconduct and is on the [District Attorney’s] list of policemen
not to call as witnesses.” Petition, 4/4/18, at 1 (unnumbered). Appellant
avers that “[t]he issue that is before this [C]ourt is that Detective Nordo
coerced [Appellant’s] alleged confession and that [Appellant] is entitled to an
evidentiary hearing on whether trial [] counsel was ineffective for not calling
… [A]ppellant as a witness at the suppression hearing.” Id. Appellant asks
this Court to remand for the PCRA court to determine if this new information
about Detective Nordo warrants an evidentiary hearing.

      We conclude that remand is unnecessary. First, the recently released
information about Detective Nordo’s misconduct cannot demonstrate that
Appellant’s trial counsel acted ineffectively by advising Appellant not to testify
at the suppression hearing. Counsel could not have known that the District



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of discretion in the PCRA court’s conclusion that Appellant failed to prove that

a genuine issue of material fact exists regarding the prejudice prong of the

ineffectiveness test.     As such, the court did not err in denying his petition

without a hearing.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/18




____________________________________________


Attorney’s Office would accuse Detective Nordo of misconduct in March of
2018. Moreover, this information about Detective Nordo’s alleged misconduct
would have, at best, resulted in the suppression of Appellant’s confession.
However, for the reasons stated supra, the omission of that cumulative
evidence from Appellant’s trial would not have changed the outcome, where
Appellant also confessed to Ms. Ramirez. Accordingly, Appellant has not
demonstrated that our remanding for the PCRA court to examine this new
information is warranted. Thus, we deny his “Petition to Remand to Trial Court
for Consideration of Newly Discovered Evidence.”

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