J-S20025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    LOUIS RAMOS

                             Appellant                No. 897 EDA 2019


        Appeal from the Judgment of Sentence Entered March 13, 2019
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0000990-2017


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                              FILED JULY 29, 2020

       Appellant Louis Ramos appeals from the March 13, 2019 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”), following his jury convictions for involuntary deviate sexual

intercourse (“IDSI”) with a child, unlawful contact with a minor, indecent

assault, and corruption of a minor.1 Upon review, we affirm.

       The facts and procedural history of this case are undisputed.         As

summarized by the trial court:

       This case arises from an illicit sexual relationship between
       Appellant and his minor nephew, I.C. At trial, I.C. testified that
       from 2008 to 2010 his family lived with Appellant[, his maternal
       uncle,] in Philadelphia. I.C. indicated that he and Appellant, “hit
       it off” and always hung out together. At that time, I.C. was 7 to
       8 years old and was going from the third grade to fourth grade.


____________________________________________


1 18 Pa.C.S.A. §§ 3123(a)(1), 6318(a)(1), 3126(a)(1), and 6301(a)(1),
respectively.
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     I.C. stated that during this time, Appellant began to undress and
     kiss him when they were in the basement of the residence.
     Appellant told I.C., “[d]on’t tell anybody. This has to stay a top
     secret.”    In addition, Appellant began introducing I.C. to
     marijuana.

     As the relationship progressed, Appellant began taking I.C. to his
     job working the night shift at a scrap yard. There, Appellant began
     showing I.C. gay porn videos and suggested that they try the acts
     depicted in the videos. On multiple occasions, while watching the
     gay porn, Appellant performed oral sex on I.C. In addition,
     Appellant had I.C. shave his butt and legs and place his fingers in
     [Appellant’s] butt. At Appellant’s suggestion, I.C. also placed his
     penis in Appellant’s butt. Appellant asked I.C. to perform oral sex
     on him, but I.C. declined, fearing he would choke. Instead, I.C.
     would “jerk off” Appellant by putting his hand on Appellant’s penis
     and pulling back and forth. When I.C. refused to allow Appellant
     to place his penis in I.C.’s butt because he was afraid it would
     hurt, Appellant would instead lay behind I.C., place his penis
     between his legs and then thrust back and forth.

     After I.C.’s family and Appellant moved to I.C’s father’s house,
     Appellant on multiple occasions entered the bathroom when I.C.
     was taking a shower and performed oral sex on him.

     In 2010, [I.C.] and his family moved to Connecticut and I.C. had
     no further contact with Appellant until the death of his
     grandmother in January 2016. Appellant and a number of other
     relatives from Philadelphia travelled to Connecticut for her funeral.
     After Appellant returned to Philadelphia, I.C. confided in his
     boyfriend, Adbiel who urged him to tell his mother about the above
     events. I.C. then informed his mother, who called the Philadelphia
     Police.

     Appellant was arrested on January 20, 2017 and charged with[,
     inter alia the above-mentioned] offenses. On July 18, 2018, the
     case proceeded to a jury trial before the Honorable Diana L. Anhalt
     and on July 23, 2018, the jury returned a verdict of guilty [on
     those] offenses.

Trial Court Opinion, 10/9/19, at 1-4 (record citations omitted). On October

25, 2018, the trial court sentenced Appellant to an aggregate term of 12 to

24 years’ imprisonment. Appellant filed post-sentence motions. On March

13, 2019, the trial court granted the post-sentence motion, resentencing

Appellant to a concurrent terms of 7 to 14 years’ imprisonment for IDSI and

unlawful contact with a minor and consecutive term of 1 to 2 years in prison

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for indecent assault. The court imposed no further penalty for corruption of a

minor. As a result, the trial court reduced Appellant’s aggregate sentence to

8 to 16 years’ imprisonment.      Appellant timely appealed.      The trial court

directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained

of on appeal.    Appellant complied.     In response, the trial court issued a

Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant presents three issues for our review.

      [I.] Is the sentence imposed on the conviction for indecent assault
      of a child illegal because it merges for purposes of sentence with
      the [IDSI] conviction?

      [II.] Is Appellant entitled to a new trial because of the introduction
      in evidence of the video recording of the interview with the
      complainant herein?

      [III.] Was the testimony of Denise Wilson of Philadelphia
      Children’s Alliance inadmissible in two respects?

Appellant’s Brief at 3 (unnecessary capitalizations omitted).

      Preliminarily, we agree with the Commonwealth that Appellant has

waived his second and third issues on appeal. See Commonwealth’s Brief at

15-19. At trial, Appellant failed to assert contemporaneous objections to the

admission of the video recording and Ms. Wilson’s testimony. It is settled that

an appellant’s “failure to raise a contemporaneous objection to evidence at

trial waives that claim on appeal.” Commonwealth v. Thoeun Tha, 64 A.3d

704, 713 (Pa. Super. 2013) (citation omitted); see Commonwealth v.

Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (to preserve issue for appellate

purposes, party must make timely and specific objection to ensure trial court

has opportunity to correct alleged error); Keffer v. Bob Nolan’s Auto

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Service, Inc., 59 A.3d 621, 645 (Pa. Super. 2012) (“one must object to

errors, improprieties or irregularities at the earliest possible stage of the

adjudicatory process to afford the jurist hearing the case the first occasion to

remedy the wrong and possibly avoid an unnecessary appeal to complain of

the matter.”) (citations omitted) (emphasis added); see also Pa.R.E. 103(a)

(providing that an “[e]rror may not be predicated upon a ruling that admits

or excludes evidence unless . . . a timely objection . . . appears of record.”);

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.”).

      Acknowledging waiver based on lack of objection, Appellant suggests

that his second and third issues be construed and resolved as claims of

ineffective assistance of trial counsel. We disagree. As the Commonwealth

correctly notes, Appellant may not raise ineffectiveness claims on direct

appeal but must instead raise them in a PCRA petition. See Commonwealth’s

Brief at 16-17, 19. In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002),

our Supreme Court held that, as a general rule, defendants must wait to raise

ineffective assistance of counsel claims until collateral review. Only in specific

limited circumstances may a defendant raise ineffectiveness claims in post-

sentence motions and on direct appeal.         See, e.g., Commonwealth v.

Holmes, 79 A.3d 562, 563–64 (Pa. 2013) (trial court has discretion to

entertain ineffectiveness claims on post-verdict motions and direct appeal

where: (1) claim of ineffectiveness is apparent from record and meritorious to

the extent that immediate consideration best serves interests of justice; or

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(2) where good cause is shown and defendant knowingly and expressly waives

his entitlement to seek subsequent PCRA review from his conviction and

sentence).   These exceptions do not apply here.        Appellant did not claim

ineffective assistance of trial counsel in post-verdict motions, and he did not

knowingly or expressly waive his entitlement to seek subsequent PCRA review

from his conviction. At present, there is nothing in the record that facilitates

intelligent appellate review of Appellant’s claims of ineffective assistance.

Therefore, Appellant must wait until PCRA proceedings to raise ineffective

assistance claims. Commonwealth v. Britt, 83 A.3d 198, 204 (Pa. Super.

2013) (appellant cannot seek review of ineffectiveness claim on direct appeal,

“as it involves non-record-based claims, nor has Appellant waived PCRA

review”).

      We now turn to Appellant’s first issue that the trial court erred in failing

to merge indecent assault and IDSI for purposes of sentencing. As a result,

he argues that his sentence for indecent assault is illegal.

      “Whether Appellant’s convictions merge for sentencing is a question

implicating the legality of Appellant’s sentence. Consequently, our standard

of review is de novo and the scope of our review is plenary.                 See

Commonwealth v. Collins, 764 A.2d 1056, 1057, 1057 n.1 (Pa. 2001).

      Section 9765 of the Judicial Code provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.


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42 Pa.C.S.A. § 9765.

      The statute’s mandate is clear. It prohibits merger unless two distinct

facts are present: 1) the crimes arise from a single criminal act; and 2) all of

the statutory elements of one of the offenses are included in the statutory

elements of the other. See Commonwealth v. Tanner, 61 A.3d 1043, 1046

(Pa. Super. 2013).

      Instantly,   in   support   of   his   argument,   Appellant   relies   on

Commonwealth v. Tighe, 184 A.3d 560 (Pa. Super. 2018), aff’d 224 A.3d

1268 (Pa. 2020).     We, however, find such reliance unavailing as Tighe is

distinguishable. In Tighe, this Court concluded that defendant’s conviction

for indecent assault merged for sentencing purposes with his conviction for

IDSI where the convictions stemmed from a single five-minute incident in

which defendant held the victim down and penetrated her vaginally and orally.

Id. at 563.

      As the trial court explained:

      The instant case is distinguishable from Tighe since Appellant’s
      IDSI and indecent assault charges stem from different criminal
      acts. I.C. testified that while at Appellant’s job and inside I.C.’s
      father’s home, Appellant performed oral sex on him on a number
      of occasions. In addition, while at Appellant’s job, I.C. placed his
      penis in Appellant’s butt. These acts formed the basis for
      Appellant’s conviction for IDSI. I.C., however, described a litany
      of additional acts committed by Appellant, namely, stroking I.C’s
      penis, placing his penis between the legs of I.C. and thrusting back
      forth, and having I.C. digitally penetrate Appellant’s anus, which
      formed the basis for Appellant’s conviction for indecent assault.
      As a result, the offenses do not merge.




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Trial Court Opinion, 10/9/19, at 6.            Accordingly, Appellant does not obtain

relief on his merger claim as he repeatedly abused I.C. over a period of time.2

See Commonwealth v. Roane, 204 A.3d 998, 1002 (Pa. Super. 2019) (no

merger for indecent assault and rape where crimes were based on separate

acts involving the same victim). We therefore affirm the trial court’s judgment

of sentence.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




____________________________________________


2 Insofar as Appellant relies on general conspiracy cases to argue that the jury
here issued a general verdict making it impossible to ascertain the acts upon
which it found Appellant guilty beyond a reasonable doubt, such argument is
waived. Appellant failed to assert it before the trial court or in his Rule 1925(b)
statement. See Commonwealth v. Hill, 16 A.3d 484, 492 (Pa. 2011) (citing
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)); Pa.R.A.P.
1925(b)(4)(vii) (“[i]ssues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”); see
also 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.”). Even if not waived, Appellant’s
reliance on general conspiracy cases is misplaced. As the Commonwealth
aptly points out, “the jury returned specific convictions of specific crimes, not
a general conspiracy conviction.” Commonwealth Brief at 14.

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