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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
JOHN RAMOS,                                 :         No. 1016 EDA 2016
                                            :
                          Appellant         :


                   Appeal from the PCRA Order, March 4, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1001391-2005


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 16, 2018

        John Ramos appeals from the March 4, 2016 order entered in the

Court of Common Pleas of Philadelphia County that dismissed, without a

hearing, his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The trial court set forth the following:

              On December 8, 2006, after a jury trial before
              Judge Renee Cardwell Hughes, [appellant] was found
              guilty of rape, aggravated indecent assault,
              corruption of the morals of a minor and unlawful
              contact with a minor.[1] On July 27, 2007, following
              a Megan’s Law hearing, [appellant] was found to be
              a sexually violent predator. Also on July 27, 2007,
              Judge Hughes sentenced [appellant] to an aggregate
              term of twenty (20) to forty (40) years of
              imprisonment followed by fifteen (15) years of
              probation [Appellant] filed pro se a post-sentence

1   18 Pa.C.S.A. §§ 3121, 3125, 6301, and 6318, respectively.
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          motion for reconsideration of sentence; it was denied
          on August 9, 2007. [Appellant] filed a notice of
          appeal, and on September 22, 2008, [appellant’s]
          judgments of sentence were affirmed by the
          Pennsylvania Superior Court. On February 27, 2009,
          [appellant’s] petition for allowance of appeal was
          denied by our Supreme Court.

          On December 11, 2009, [appellant] timely filed a
          pro se PCRA petition. David Rudenstein, Esquire,
          was      subsequently    appointed   to    represent
          [appellant], and on May 30, 2012, counsel filed an
          Amended PCRA Petition on [appellant’s] behalf. On
          November 16, 2012, this court issued a notice of its
          intention to dismiss [appellant’s] Amended PCRA
          Petition    without    a    hearing   pursuant    to
          Pa.R.Crim.P. 907.       On December 12, 2012,
          [appellant] filed a pro se response to this court’s
          907 notice, arguing, inter alia, that his PCRA
          counsel was ineffective for failing to raise one of
          [appellant’s] claims in the Amended Petition. On
          December 27, 2012, after conducting a review of the
          record, this court dismissed [appellant’s] Amended
          Petition without a hearing.

          On January 9, 2013, [appellant] timely filed a pro se
          notice of appeal of this court’s dismissal of his PCRA
          Petition to the Pennsylvania Superior Court, and on
          January 11, 2013, [appellant] filed pro se an
          unsolicited    “1925(b)     Statement     of    Matters
          Complained of Appeal.”        On January 22, 2013,
          [appellant’s] PCRA counsel also filed an unsolicited
          “Statement of Matters Complained of Pursuant to
          Rule of Appellate Procedure 1925(b)”; counsel
          omitted from the statement a specific claim of
          ineffectiveness of [appellant’s] trial counsel which
          [appellant] sought to pursue.[Footnote 4] On May 2,
          2014, the Superior Court remanded the matter to
          this court with an instruction to address [appellant’s]
          claim that his PCRA counsel should have raised the
          issue of his trial counsel’s ineffectiveness for failing
          to object to the Commonwealth’s introduction of a
          child services report [“CSR”] into evidence. The
          Superior Court also instructed this court to conduct a


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          hearing pursuant to Commonwealth v. Grazier,
          552 Pa. 9, 713 A.2d 81 (1998), to determine if
          [appellant], in fact, sought to represent himself in
          pursuing his PCRA claim or desired appointment of
          counsel.

               [Footnote 4] As noted by our Superior
               Court, although [appellant] raised the
               challenge properly in his pro se 1925(b)
               Statement of Matters Complained of on
               Appeal, the claim was procedurally
               problematic “due to the obvious problem
               that PCRA counsel was still counsel of
               record.”   Commonwealth v. Ramos,
               308 EDA 2013, [] (Pa.Super. May 2,
               2014).

          On May 23, 2014, following a Grazier hearing,
          [appellant] elected to be represented by appointed
          counsel on remand. J. Matthew Wolfe, Esquire, was
          thereafter appointed to represent [appellant]. On
          September 19, 2014, counsel filed an Amended
          PCRA Petition on [appellant’s] behalf.[Footnote 5]
          On January 16, 2015, counsel filed a Second
          Amended PCRA Petition.[Footnote 6] On June 22,
          2015, counsel filed [appellant’s] Third Amended
          PCRA Petition. On July 1, 2015, [appellant] filed
          pro se an “Amended PCRA to Supplement First
          Timely Filed PCRA.” On August 19, 2015, counsel
          filed a Fourth Amended PCRA Petition on
          [appellant’s] behalf. On November 3, 2015, the
          Commonwealth filed a Motion to Dismiss.

               [Footnote 5] On October 20, 2014,
               [appellant]   filed    a    “Motion    for
               Appointment of [a] New PCRA Counsel”
               in    which   he     argued    that    his
               newly-appointed PCRA counsel failed to
               include       [appellant’s]       alleged
               Confrontation      Claim;     [appellant]
               subsequently elected to proceed with his
               counsel.




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                  [Footnote 6] On March 6, 2015,
                  [appellant] filed a Motion for the
                  Appointment      of   Counsel Due to
                  Irreconcilable Differences.

             On March 4, 2016, following a review of the
             pleadings, record, evidence and argument of
             counsel, [appellant’s] Petition for Post-Conviction
             Relief was dismissed as lacking merit.[Footnote 7]
             On March 30, 2016, [appellant], through his counsel,
             filed a Notice of Appeal to the Superior
             Court.[Footnote 8]

                  [Footnote 7] The dismissal occurred
                  more than twenty days after [appellant]
                  was     served   with   notice of   the
                  forthcoming dismissal of his PCRA
                  petition. Pa.R.Crim.P. 907.

                  [Footnote 8] On May 10, 2016, our
                  Superior Court issued an Order directing
                  compliance with Pa.R.A.P. 3517 and filing
                  the docketing statement with the
                  Prothonotary of the Superior Court by
                  May 20, 2016.       On May 19, 2016,
                  [appellan’ts] attorney timely complied
                  with the Superior Court’s Order.

Trial court opinion, 1/11/17 at 1-4 (footnotes 1-3 omitted; some brackets in

original).

      Appellant’s counseled brief raises the following issue for our review:

“Was trial counsel ineffective in failing to object to the court’s defective jury

instruction on reasonable doubt?” (Appellant’s brief at 3; full capitalization

omitted). Our review of the record, however, reveals that appellant failed to




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raise this issue in his counseled Rule 1925(b) statement.2             Therefore,

appellant waives this issue on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (issues

not included in a petitioner’s Rule 1925(b) statement are waived); see also

Commonwealth v. Hannibal, 156 A.3d 197, 211 (Pa. 2016); cert.

denied, 138 S.Ct. 59 (2017) (reiterating that issues not raised in a

petitioner’s Rule 1925(b) statement will be deemed waived).

      Order affirmed.




2 We note that in his pro se Rule 1925(b) statement, appellant raised three
ineffective assistance of counsel claims. First, appellant alleged that trial
counsel rendered ineffective assistance of counsel for failing to object to “the
Commonwealth’s inclusion of a DHS report in violation of [appellant’s] 6th
and 14th amendment right [sic] to confront his accuser and due process of
law.” Second, appellant alleged PCRA counsel’s ineffectiveness for amending
appellant’s PCRA petition and failing to include a claim of trial counsel’s
ineffectiveness for failing to object to the Commonwealth’s inclusion of the
DHS report and “not objecting to the PCRA [c]ourt holding an incamera [sic]
evidentiary hearing . . . to determine the merits of [PCRA counsel’s amended
claims].” Third, appellant claimed that the PCRA court abused its discretion
when it denied appellant an in camera evidentiary hearing and did not
dispose of his pro se motion for appointment of new PCRA counsel when he
raised a claim of ineffectiveness of PCRA counsel.                  (Appellant’s
“1925(b) statement of matters complained of on appeal,” 1/11/13.)

In his counseled Rule 1925(b) statement, appellant alleged that the PCRA
court erred in dismissing his PCRA petition without an evidentiary hearing
when he “properly pled and could have proven several causes for relief
including . . . ineffectiveness of trial counsel where counsel failed to object to
a grossly improper instruction to the jury which discounted the importance
and even the relevance of character testimony [and] where counsel failed to
subpoena and produce known and available witnesses.”                  (Appellant’s
“statement of matters complained of pursuant to Rule of Appellate
Procedure 1925(b), 1/22/13 at 1.) In that statement, appellant also claimed
his entitlement to a remand for an evidentiary hearing. (Id. at 2.)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/16/18




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