J. S38001/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   v.                     :
                                          :
LUIS ORTIZ RAMOS,                         :         No. 1126 EDA 2015
                                          :
                        Appellant         :


           Appeal from the Judgment of Sentence, March 3, 2015,
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-0001470-2012


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 06, 2016

      Luis Ortiz Ramos appeals from the judgment of sentence entered by

the Court of Common Pleas of Montgomery County on March 3, 2015,

following his conviction in a jury trial of three counts of raping a child under

the age of 13, two counts of involuntary deviate sexual intercourse (“IDSI”)

with a child under 13, three counts of aggravated indecent assault of a child

under 13, and one count of indecent assault.1 Prior to sentencing, the trial

court designated appellant as a sexually violent predator.      Thereafter, the

court sentenced appellant to 30 to 200 years of incarceration, followed by

30 years of probation. We affirm.

      The trial court set forth the following:


1
 18 Pa.C.S.A. § 3121(c), 18 Pa.C.S.A. § 3123(b), 18 Pa.C.S.A. § 3125(b),
and 18 Pa.C.S.A. § 3126, respectively.
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                 Y.C., who was born September [], 2001, came
          from Puerto Rico to Hatfield, Montgomery County, in
          2009 and began living with her mother, brother,
          grandmother and [appellant].       [Appellant], who
          came to the continental United States from Puerto
          Rico in 1955, was the long-time boyfriend of Y.C.’s
          grandmother. He and the family considered him to
          be like a step-grandfather to Y.C.

                Prior to Y.C. beginning fifth grade in
          September 2011, [appellant] started taking video
          recordings of Y.C. and her friend V.G.[Footnote 2]
          while they were in the house and outside in the pool.
          In certain of the videos, the two minors are wearing
          bathing suits and [appellant] focused the camera on
          their breast and vaginal areas. The videos also
          include an instance where [appellant] touched one of
          V.G.’s breasts. As for Y.C., [appellant] touched her
          breasts and vaginal area with his hands on numerous
          occasions and eventually escalated to penetrating
          her vagina with his fingers and penis, touching her
          vaginal area with his tongue and putting his penis in
          and around her mouth.          The heinous conduct
          occurred when [appellant] was babysitting Y.C. while
          her mother and grandmother were out of the house.
          [Appellant] threatened Y.C. that he would hit her if
          she did not give in to his demands for sexual
          contact. Y.C. did not report the incidents when they
          occurred because she was afraid.

               [Footnote 2]   V.G. was born August [],
               2000.

                [Appellant’s] actions came to light when Y.C.
          and her family visited Puerto Rico without him in
          December 2011.       Y.C. had brought [appellant’s]
          camera with her on the trip. A family member
          discovered videos on the camera of Y.C. and V.G.
          and brought them to the attention of Y.C.’s mother.
          Y.C. eventually disclosed to her mother what
          [appellant] had been doing to her.

                Upon returning to Hatfield, Y.C.’s mother
          alerted police to the videos. During the subsequent


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             investigation, [appellant] voluntarily appeared at the
             Hatfield Township police station and gave a
             statement to police.         After being given his
             Miranda[2] warnings and waiving his right to remain
             silent, he admitted to taking videos of Y.C. and V.G.
             He also admitted that he touched Y.C.’s vagina, that
             he had tried to perform oral sex on Y.C. and that
             Y.C. put his penis in her mouth, although he claimed
             the minor was the aggressor.

                    [Appellant] was charged with over two
             dozens [sic] offenses, ranging from rape of a child to
             corruption of minors. He initially entered an open
             guilty plea to one count of involuntary deviate sexual
             intercourse with a child and one count of criminal
             attempt at involuntary deviate sexual intercourse
             with a child. [Appellant] withdrew the plea before
             sentencing and the case was scheduled for trial.

                    Prior to trial, [appellant] filed a motion to
             suppress his statement to police. He argued that he
             did not understand English well enough to make a
             knowing and voluntary waiver of his right to remain
             silent and he was not provided an attorney. This
             court denied the motion after a hearing at which it
             set forth on the record its findings-of-fact and
             conclusions-of-law.

                   A jury found [appellant] guilty of three counts
             of rape of a child under the age of 13,[Footnote 3]
             two counts of involuntary deviate sexual intercourse
             (“IDSI”) with a child under 13,[Footnote 4] three
             counts of aggravated indecent assault of a child
             under 13[Footnote 5] and one count of indecent
             assault.[Footnote 6] At sentencing, this court found
             [appellant] to be a sexually violent predator. This
             court also sentenced [appellant] to consecutive
             terms of imprisonment of 6 to 40 years for each of
             the rape and IDSI offenses. [Appellant] received
             consecutive sentences of 10 years [sic] probation for
             each of the three aggravated indecent assault
             offenses. This court imposed no penalty for the

2
    Miranda v. Arizona, 384 U.S. 436 (1966).


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            indecent assault charge. The sentences aggregate to
            30 to 200 years in prison and 30 years of probation.

                   [Footnote 3]   Counts 23-25       of the
                   amended Information.

                   [Footnote 4] Counts 1-2 of the amended
                   Information.

                   [Footnote 5]   Counts 14-16       of the
                   amended Information.

                   [Footnote 6]   Count 19 of the amended
                   Information.

                  [Appellant] filed a post-sentence motion. He
            challenged the denial of his motion to suppress and
            the discretionary aspects of his sentence. This court
            denied the motion and [appellant] filed an appeal to
            the Superior Court. [Appellant], through counsel,
            subsequently complied with this court’s directive that
            he produce a concise statement of errors in
            accordance with Pennsylvania Rule of Appellate
            Procedure [1925(b)].

Trial court opinion, 6/19/153 at 1-4 (record citations omitted) (Footnote 7

omitted).

      Appellant raises the following issues for our review:

            I.     Did the Court err by denying the Appellant’s
                   timely Motion to Suppress Evidence, namely
                   the Appellant’s incriminating statements?

            II.    Did the Court violate the Sentencing Code by
                   imposing a sentence that was harsh and
                   excessive under the circumstances?

Appellant’s brief at 5.


3
 The trial court dated the opinion June 18, 2015, but filed it on June 19,
2015.


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      At the outset, we must determine whether appellant’s first issue is

properly before us.

      In his first issue on appeal, the argument section of appellant’s brief

reveals that appellant’s complaint is actually two-fold.     First, appellant

complains that the trial court erred in denying his motion to suppress

appellant’s incriminating statements because even though the trial court’s

factual findings support the conclusion that appellant is able to converse in

English, there was no evidence presented at the suppression hearing that

appellant is able to read and comprehend written English. Second, appellant

complains that the arresting officer deceived appellant into going to the

police station.

      In his concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), appellant framed his first issue this way: “That the Court

erred by denying [appellant’s] timely Motion to Suppress Evidence, namely

[appellant’s] incriminating statements.” (Docket #88.) In its Rule 1925(a)

opinion, the trial court correctly noted that appellant’s “vague concise

statement does not indicate the ground(s) for his challenge to the

suppression ruling.” (Trial court opinion, 6/19/15 at 6 n.9.) Nevertheless,

the trial court attempted to guess as to the precise issue appellant might

raise with respect to the denial of his suppression motion, seemingly based

on the record as it relates to the suppression motion and subsequent

hearing.    In so doing, the court incorporated its findings of fact and



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conclusions of law that it placed on the record at the suppression hearing;

specifically, that the court found the police detective credible when he

testified as to appellant’s ability to communicate in English and that it did

not   find     appellant’s   self-serving    statements   credible   insofar   as   his

understanding of English was concerned.            (Id. at 6.)   Because appellant

raised his inability to communicate in English in his omnibus pre-trial motion

to suppress, because that issue was the subject of the suppression hearing,

and because the trial court addressed that issue in its Rule 1925(a) opinion,

we will review this claim.

      Appellant, however, failed to raise his second claim regarding police

deception with the trial court. Our careful review of the record shows that

appellant never raised this issue in his omnibus pre-trial motion, that he

never raised it at the suppression hearing, and the trial court did not address

it in its Rule 1925(a) opinion.       Therefore, appellant’s failure to raise this

issue with the trial court results in waiver.       See Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.”).

      Consequently, we need only address whether the record supports the

trial court’s determination that appellant’s statements to the police detective

were voluntary and admissible and whether that determination is free of

legal error.




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      “The test for determining the voluntariness, and thus the admissibility,

of an accused’s statement is the totality of the circumstances surrounding

the statement.” Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013)

(citation omitted).   Our supreme court set forth the following factors for

consideration under a totality of the circumstances test to determine

whether an accused freely and voluntarily made a statement:

            the duration and means of interrogation, including
            whether questioning was repeated, prolonged, or
            accompanied by physical abuse or threats thereof;
            the length of the accused’s detention prior to the
            confession; whether the accused was advised of his
            or her constitutional rights; the attitude exhibited by
            the police during the interrogation; the accused’s
            physical and psychological state, including whether
            he or she was injured, ill, drugged, or intoxicated;
            the conditions attendant to the detention, including
            whether the accused was deprived of food, drink,
            sleep, or medical attention; the age, education, and
            intelligence of the accused; the experience of the
            accused with law enforcement and the criminal
            justice system; and any other factors which might
            serve to drain one’s powers of resistance to
            suggestion and coercion.

Id. (citation omitted).

            When we review the denial of a suppression motion,
            we are guided by the following principles:

                  [O]ur initial task is to determine whether
                  the [trial court’s] factual findings are
                  supported by the record. In making this
                  determination, we must consider only
                  the evidence of the prosecution’s
                  witnesses, and so much evidence of the
                  defense that remains uncontradicted
                  when fairly read in the context of the
                  record as a whole. When the evidence


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                      supports the factual findings, we are
                      bound by such findings; we may reverse
                      only if the legal conclusions drawn
                      therefrom are erroneous.

Id. (citation omitted).

      Here, during the suppression hearing, the Commonwealth proferred

Detective Thomas E. Starner, Jr., who took appellant’s initial statement. The

defense presented appellant’s testimony.            Following the hearing, the trial

court denied appellant’s motion to suppress, expressly holding that it found

Detective Starner’s testimony credible and appellant’s testimony incredible

and self-serving. (Notes of testimony, 3/27/14 at 53, 57.)

      Specifically,     the   court   made    the     following   findings   of   fact:

Detective Starner has been a police officer for approximately 21 years. (Id.

at 54.) All contact between Detective Starner and appellant was conducted

in English.    (Id.)      Detective Starner initially contacted appellant via

telephone and advised appellant that he wanted to interview appellant and

provided the reason why. (Id.) Appellant responded that he lived close by

and would drive over immediately.              (Id.)      When appellant arrived,

Detective Starner greeted him in the lobby.              (Id.)     Detective Starner

informed appellant of the nature of the investigation.            (Id. at 55.)    At no

time did the detective observe anything that indicated that appellant had

difficulty understanding English. (Id.)

      When appellant entered the interview room, Detective Starner read

verbatim the constitutional rights form warning section to appellant, and


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appellant   indicated    that    he     understood     the    warnings.          (Id.)

Detective Starner then asked appellant to read the warnings, and after

appellant was done reading, to sign and print his name to indicate that he

understood the warnings. (Id. at 55-56.) Appellant complied. (Id. at 56 &

Exhibit 1.) Detective Starner then read the waiver of constitutional rights to

appellant and then asked appellant to read the waiver and then sign and

print his name indicating that he understood the waiver.              (Id. at 56.)

Appellant complied. (Id.) Detective Starner then asked appellant whether

appellant was willing to speak with him.             (Id.)   Appellant responded

affirmatively.   (Id.)   After being assured of appellant’s willingness to

proceed, the formal question and answer was conducted. (Id.) At no point

during the interview did Detective Starner observe any indication of any

confusion of any kind by appellant as he responded to the detective’s

questions. (Id.)

      The   formal   questions    and    answers     were    then   typed   on    the

investigation interview record.       (Id.)   Detective Starner then instructed

appellant to review the typed questions and answers, and if appellant found

them accurate, to initial each answer and sign each page. (Id.) Appellant

reviewed the document for 10 to 15 minutes and initialed and signed each

page. (Id. at 57 & Exhibit 2.)

      The trial court further found that appellant has lived in the United

States since 1955 and has worked in this country for 30 years. (Id. at 57.)



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Based on the court’s observations of appellant and appellant’s testimony, the

court found appellant not credible. (Id.)

      Here, contrary to appellant’s assertion, the Commonwealth produced

evidence that appellant was able to read and comprehend written English

when he made his incriminating statements. That ability, however, was just

one of many factors that supported the trial court’s conclusion that appellant

made his statements freely and voluntarily. Therefore, under the totality of

the circumstances, the record supports the trial court’s determination that

appellant made his statements freely and voluntarily, and consequently,

those statements were admissible. We find no legal error.

      Appellant’s final complaint implicates the discretionary aspects of his

sentence.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a


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            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct 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
                  sentence    appealed    from    is   not
                  appropriate under the Sentencing Code,
                  42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      Here, the record reveals that appellant filed a timely notice of appeal,

properly preserved his sentencing issue in his motion to modify sentence,

and included a Pa.R.A.P. 2119(f) statement in his brief. Therefore, we must

now determine whether appellant raises a substantial question.

      We determine whether an appellant raises a substantial question on a

case-by-case basis.     Commonwealth v. Swope, 123 A.3d 333, 338

(Pa.Super. 2015) (citation omitted).      “A substantial question exists only


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when an appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Id. (citation omitted).

            In determining whether a substantial question exists,
            this Court does not examine the merits of whether
            the sentence is actually excessive. Rather, we look
            to whether the appellant has forwarded a plausible
            argument that the sentence, when it is within the
            guideline   ranges,     is   clearly  unreasonable.
            Concomitantly,      the     substantial     question
            determination does not require the court to decide
            the merits of whether the sentence is clearly
            unreasonable.

Id. at 340 (citation omitted).

            A court’s exercise of discretion in imposing a
            sentence concurrently or consecutively does not
            ordinarily raise a substantial question. Rather, the
            imposition of consecutive rather than concurrent
            sentences will present a substantial question in only
            the most extreme circumstances, such as where the
            aggregate sentence is unduly harsh, considering the
            nature of the crimes and the length of imprisonment.

            To make it clear, a defendant may raise a
            substantial question where he receives consecutive
            sentences within the guideline ranges if the case
            involves circumstances where the application of the
            guidelines would be clearly unreasonable, resulting
            in an excessive sentence; however, a bald claim of
            excessiveness due to the consecutive nature of a
            sentence will not raise a substantial question.

Id. at 338 (citation omitted; internal citations and quotation marks omitted;

emphasis in original).




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      Here, the trial court sentenced appellant to 30 to 200 years of

incarceration, followed by 30 years of probation.       The court imposed

consecutive, standard-range sentences of 6 to 40 years for each of the three

rape offenses and for each of the two IDSI offenses. The court also imposed

consecutive 10-year probationary terms for each of the three aggravated

indecent assault offenses. Appellant concedes that the minimum sentence

“may not be unreasonable.” (Appellant’s brief at 17.) Appellant’s complaint

rests with the maximum sentence imposed because:

            [he] is now 78 years of age, he would have to live
            three (3) lifetimes just to start his probation. How
            do you justify that such a sentence is needed to
            protect the public or the victim? Most probably the
            victim will be dead more than 100 years before
            [appellant] starts his probation.

Appellant’s brief at 17 (emphasis in original).

      Therefore, the gravamen of appellant’s complaint is that his sentence

is excessive due to its consecutive nature in relation to his advanced age.

Just as we have noted that an appellant is not entitled to a volume discount

when a court imposes consecutive sentences for multiple crimes,4 we note

that an appellant is not entitled to a seasonal discount when he commits his

crimes in the winter of his life. Therefore, because appellant has advanced

no plausible argument as to why his sentence is unreasonable considering



4
  See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995)
(noting that a defendant is not entitled to a “volume discount” for multiple
crimes by having all sentences run concurrently).


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the nature of his crimes and the length of his sentence, he has failed to raise

a substantial question for our review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016




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