J-S77015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
 MICHAEL A. RAMOS                               :
                                                :
                       Appellant                :   No. 1777 EDA 2018

              Appeal from the PCRA Order Entered May 31, 2018
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0005015-2015


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OTT, J.:                                     FILED APRIL 23, 2019

      Michael A. Ramos appeals from the order entered on May 31, 2018, in

the Court of Common Pleas of Montgomery County, denying him relief without

a hearing on his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Ramos raises three

issues. He claims the PCRA court erred in denying him relief on his claims: 1)

trial counsel provided ineffective assistance by failing to file an interlocutory

appeal challenging       the   Commonwealth’s       reliance    on   hearsay at      the

preliminary hearing; 2) trial counsel bullied him into entering into the

negotiated    guilty   plea;   and   3)   his   sentence   is   illegal   pursuant    to

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).                     After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On June 30, 2015, Ramos was charged with 45 counts of criminal

activity related to his filming and photographing two females, one adult and

one minor, in two incidents on the same day, while they were changing clothes

in the dressing rooms at a Target store. When the adult saw a man’s hand

holding his cell phone over the dressing room wall she screamed and fled the

changing room. By watching surveillance video, Ramos was identified as the

only male in the changing room area at the time.           Pursuant to a warrant,

Ramos was arrested and certain property was seized, including a black Nokia

cell phone. A forensic examination of that phone revealed 14 videos taken in

the Target changing room area.            Thirteen of the videos depicted a minor

female trying on bathing suits. Nine of those videos depicted the child in some

state of nudity. The fourteenth video depicted the adult female who saw the

cell phone and screamed. This video did not depict the woman in a state of

undress. Several other videos were also found on the cell phone, most of

which depicted women using public bathrooms.                 These women were

apparently never identified and were not used as the basis of any of the

charges in this matter.

       The 45 charges against Ramos included multiple counts of invasion of

privacy, sexual abuse of children (photographing a minor), and sexual abuse

of children (possession of child pornography).1 On December 8, 2016, Ramos

entered into a negotiated guilty plea to one count of invasion of privacy, one
____________________________________________


1  18 Pa.C.S. §§ 7507.1(a)(1) and (a)(2), 6312(b)(2), and 6312(d),
respectively.

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count of possession of child pornography and two counts of photographing a

minor. In exchange for the guilty plea, Ramos received an aggregate sentence

of 3½ to 10 years’ incarceration, followed by 5 years of probation.

Additionally, the Commonwealth nolle prossed all remaining charges (41

additional counts).

       Ramos did not file a direct appeal.         Accordingly, his judgment of

sentence (JOS) became final on January 9, 2017.2 Pursuant to statute, Ramos

had one year from the date his JOS became final to file a timely PCRA petition.

Ramos filed a petition on November 28, 2017 – well within the one year limit.

Counsel was appointed and filed an amended petition, which was denied

without a hearing on May 31, 2018. This timely appeal followed.

       We begin by noting, “This Court’s standard of review regarding an order

denying a petition under the PCRA is whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Kretchmer, 189 A.3d 459, 462 (Pa. Super. 2018)

(citation omitted).

       In his first issue, Ramos claims his trial counsel was ineffective for failing

to file an interlocutory appeal challenging the Commonwealth’s reliance on

hearsay evidence to prove a prima facie case against him. The burden of

demonstrating ineffective assistance of counsel is well settled.

____________________________________________


2 The 30-day time limit to file an appeal expired on January 7, 2017, a
Saturday. Accordingly, Monday, January 9, 2017, is the date Ramos’ sentence
became final.

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      Appellant must demonstrate: (1) the underlying claim is of
      arguable merit; (2) that counsel had no reasonable strategic basis
      for his or her action or inaction; and (3) but for the errors and
      omissions of counsel, there is a reasonable probability that the
      outcome of the proceedings would have been different. The
      petitioner bears the burden of proving all three prongs of the test.

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007)

(citations omitted).

      Here, Ramos asserts counsel did not consult him regarding an

interlocutory   appeal   after   the   habeas   corpus   hearing   where     the

Commonwealth relied upon hearsay. Ramos claims:

      A defendant in appellant’s position would have desired an appeal
      from the habeas ruling because the Commonwealth’s reliance on
      hearsay testimony to sustain its prima facie burden of proof
      denied appellant of his constitutional right to procedural due
      process. Generally, an appeal may be taken as of right from any
      final order of a trial court.      Pa.R.A.P. 341(a).    In most
      circumstances, “the denial of a pre-trial writ of habeas corpus
      based on a lack of sufficient prima facie evidence does not
      constitute and appealable order.” Commonwealth v. Ricker,
      120 A.3d 349, 353 (Pa. Super. 2015). However, when exceptional
      circumstances exist, an appeal from such an interlocutory order
      may be considered. Id.

Ramos’ Brief at 20. This argument fails for multiple reasons.

      In the first instance, Ricker is distinguishable from the instant matter.

Ricker addressed a situation where the Commonwealth presented only

hearsay evidence to prove a prima facie case. A panel of our Court recognized

that the Commonwealth did present some direct evidence, but that evidence

was not relevant to proving any element of the crimes charged. Ricker, 120

A.3d at 356. Here, while much of the relevant evidence presented was

hearsay, the Commonwealth also presented a significant amount of direct


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evidence in the form of the images the testifying police officer, Detective

Patrick Haines, obtained from the confiscated cell phone during his forensic

examination of that cell phone. Those images of a minor female changing

clothes and of the adult female also in a changing room, were directly relevant

to proving the charges of child pornography, photographing a minor, and

invasion of privacy. Accordingly, the underlying thesis of Ramos’ claim, the

Commonwealth presented only hearsay evidence, is facially incorrect.

      Next, discounting the fact that the Commonwealth presented relevant

direct evidence, Ramos claims his situation presented the same extraordinary

circumstances as was found in Ricker. It is correct that a panel of our Court

found such extraordinary circumstances to support an interlocutory appeal

where it was alleged the Commonwealth relied solely on hearsay to make out

a prima facie case. Although the question was novel in Ricker and that the

issue could have been lost had the interlocutory appeal not been allowed, at

the time of Ramos’ habeas corpus hearing on September 5, 2016, Ricker had

been decided, and a panel of our Court had determined that a prima facie case

could be proven based solely upon hearsay.       The question Ramos raised,

having been answered, was no longer novel and the situation no longer

presented an exceptional circumstance.         Therefore, the general rule

prohibiting interlocutory appeals would apply and there would have been no

use in seeking the appeal. “Counsel is not ineffective for failing to pursue a

meritless claim.”   Commonwealth v. Maddrey, ___ A.3d ___, 2019 PA

Super 57, *4 (February 22, 2019).

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      Moreover, our Supreme Court accepted Ricker for review, but then

dismissed the appeal as improvidently granted.         Had Ramos sought an

interlocutory appeal on the issue, and obtained a ruling, he would not have

prevailed. Because Ramos cannot demonstrate prejudice, counsel could not

have been ineffective.

      No hearing before the PCRA Court would have changed either of the

reasons cited above. Therefore, the PCRA Court did not err in denying, without

a hearing, Ramos relief on this issue.

      In his second issue, Ramos claims his counsel was ineffective for bullying

him into believing he had no option but to plead guilty. We begin by noting:

      “[A] defendant is bound by the statements which he makes during
      his plea colloquy.” Therefore, a defendant “may not assert
      grounds for withdrawing the plea that contradict statements made
      when he pled guilty,” and he may not recant the representations
      he made in court when he entered his guilty plea.

Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super. 2018) (citations

omitted).

      Here, our review of the certified record confirms that at the guilty plea,

Ramos stated he was satisfied with counsel’s representation and that no one

had threatened him or made any other promises to him in order to induce him

to plead guilty. Specifically, Ramos testified under oath:

      [Question (by Counsel)]: Has anyone threatened you in any way
      to get you to plead guilty today?

      [Ramos]: No.




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      [Question]: Aside from us presenting this offer to His Honor, has
      anyone promised you anything to get you to plead guilty today?

      [Ramos]: No.
                                     ....

      [Question]: Are you satisfied with my representation?

      [Ramos]: Yes.
                                     ....

      [Question (by the trial judge)]: Has anyone forced you or
      threatened you to plead guilty today?

      [Ramos]: No.

      [Question]: Are you satisfied with your counsel?

      [Ramos]: Yes.

      [Question]: Do you believe she represented you well?

      [Ramos]: Yes.

N.T. Guilty Plea, 12/8/2016 at 7, 12, 13.

      Ramos’ current allegation clearly and improperly contradicts his sworn

testimony. Ramos is not entitled to relief on this issue, and the PCRA court

did not err in dismissing this claim without a hearing.

      In his final issue, Ramos asserts his sentence is illegal in that he was

denied the benefit of the bargain of his plea deal when, after he plead guilty,

SORNA was deemed to be punitive rather than merely a civil consequence of

his crime. Ramos contends that had he known SORNA would be designated

as punitive, he would have been able to strike a different bargain.

      We have never seen this argument before, however, the unique

character of the argument does not transform it into a meritorious one.

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      Initially, Ramos misconstrues the circumstance of our Supreme Court

declaring the application of SORNA as violating the prohibition of ex post facto

legislation.    See Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)

(sexual offender registration is punitive in nature and cannot be applied

retroactively as that would violate the ex post facto clause). Under Muniz,

SORNA cannot be applied to those offenders who committed the relevant

crimes before the enactment of SORNA. Ramos both committed the offenses

and pled guilty after SORNA was enacted. Accordingly, here there is no ex

post facto consideration. The sole difference between Ramos’ pre and post

Muniz sentence is the designation of registration as being punitive.        The

actual requirements Ramos must obey have not changed in any respect.

Moreover, it is nothing but pure speculation by Ramos that he could have

altered his plea agreement had he known SORNA would subsequently be

designated punitive.

      Our review of the certified record reveals Ramos entered into the

negotiated guilty plea knowingly and voluntarily. By doing so, he avoided the

possibility of decades of incarceration, had he been convicted on only half of

the charges levied against him. We perceive his current argument as nothing

other than a thinly veiled claim of buyer’s remorse, for which he is entitled to

no relief.     The PCRA court did not err in denying this argument without a

hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/19




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