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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                       :
                                             :
GREGORY RAMOS,                               :
                                             :
                          Appellant          :    No. 1384 MDA 2015

                    Appeal from the PCRA Order July 13, 2015
                In the Court of Common Pleas of Franklin County
                Criminal Division No(s): CP-28-CR-0002005-2010
                                         CP-28-CR-0002006-2010
                                         CP-28-CR-0002007-2010
                                         CP-28-CR-0002008-2010

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                FILED JULY 01, 2016

        Appellant, Gregory Ramos, appeals from the July 13, 2015 Order

entered in the Franklin County Court of Common Pleas denying his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

        On October 20, 2011, a jury convicted Appellant of two counts each of

Sexual Exploitation of Children, Promoting Prostitution, and Corruption of

Minors.1     On January 18, 2012, the trial court imposed an aggregate

sentence of 22 to 44 years’ incarceration.



*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. § 6320; 18 Pa.C.S. § 5902; and 18 Pa.C.S. § 6301,
respectively.
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        Appellant filed a direct appeal. We affirmed Appellant’s Judgment of

Sentence on April 4, 2013. Commonwealth v. Ramos, Nos. 1115, 1116,

1117 & 1118 MDA 2012 (Pa. Super. filed April 4, 2013) (unpublished

memorandum).          Our   Supreme    Court denied    Appellant’s Petition    for

Allowance of Appeal on October 9, 2013. Commonwealth v. Ramos, 77

A.3d 636 (Pa. 2013).

        On March 7, 2014, Appellant filed the instant timely pro se PCRA

Petition, later amended by appointed counsel, alleging, inter alia, ineffective

assistance of trial and appellate counsel.2

        The PCRA court held an evidentiary hearing on June 25, 2015, at

which Appellant and David Breschi, Esq.,3 testified. On July 13, 2015, the

PCRA court dismissed Appellant’s Petition. Appellant filed a timely Notice of

Appeal on August 12, 2015.

        Appellant raises the following issue for our review:

        Whether the PCRA Court erred in denying Petitioner relief in the
        form of restoration of his direct appeal rights, where he
        presented testimony that his previous appellate counsel filed a
        sole wholly frivolous issue on direct appeal and thus waived a
        meritorious issue involving his 6th Amendment right to counsel at
        his Preliminary Hearing?

Appellant’s Brief at 8.


2
  Relevant to the instant Petition, appellate counsel did not develop claim
that Appellant had been improperly denied counsel at the preliminary
hearing, which resulted in waiver of the issue on appeal.
3
    David Breschi, Esq. represented Appellant at trial and on direct appeal.



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     We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.    Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

     To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.    42 Pa.C.S. § 9543(a)(3).   An allegation of

error “is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

     Appellant’s sole issue in this appeal avers that he received ineffective

assistance of appellate counsel.    The law presumes counsel has rendered

effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.

Super. 2010).        The burden of demonstrating ineffectiveness rests on

Appellant. Id. To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence that: “(1) his underlying claim is of arguable



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merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Appellate counsel is not required to raise all non-frivolous claims on

appeal.   Rather, appellate counsel may select to raise those issues that

maximize the likelihood of success on appeal. Thus, “[a]rguably meritorious

claims may be omitted in favor of pursuing claims which, in the exercise of

appellate counsel’s objectively reasonable professional judgment, offer a

greater prospect of securing relief.”     Commonwealth v. Lambert, 797

A.2d 232, 244 (Pa. 2001).

      Appellant avers that his appellate attorney was ineffective for raising a

“wholly frivolous issue on direct appeal” and failing to develop his Sixth

Amendment claim that he was impermissibly denied counsel at the

preliminary hearing resulting in waiver of the issue. Appellant’s Brief at 8.

In his direct appeal, Appellant raised, inter alia, the following issue:

“whether the trial court erred in denying Appellant’s motion to direct the

Commonwealth to offer him a plea agreement[.]” See Commonwealth v.

Ramos,     Nos.   1115,   1116,   1117    &   1118   MDA    2012,    unpublished



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memorandum at 1 (Pa. Super. filed April 4, 2013). Appellant argues here

that Attorney Breschi “couched the issue before the Superior Court as one of

discrimination based upon income[,]” which was “in direct conflict with

existing precedent and thus frivolous.” Appellant’s Brief at 10-11 (emphasis

in original).

      In the disposition of Appellant’s direct appeal, this Court noted:

              Appellant … offers an unclear argument, without factual
      citations to the record, in which he seems to be saying that,
      based on his income, he applied for a public defender, was
      initially denied one, was later granted one on the day of the
      preliminary hearing, but nonetheless represented himself
      because no counsel appeared to represent him. Furthermore,
      Appellant claims that, because he represented himself at his
      preliminary hearing, he declined to waive that hearing—a
      decision he would not have made if he had been counseled.
      Moreover, he asserts that, because he did not waive his hearing,
      the Commonwealth refused to offer him a plea agreement.
      Appellant suggests that, if he had had sufficient income to hire
      counsel, counsel would have represented Appellant at his
      preliminary hearing, Appellant would not have waived his
      hearing, and the Commonwealth would have engaged in plea
      negotiations. Appellant concludes his income was thus the basis
      for the Commonwealth’s decision not to offer a plea agreement.

                               *     *      *
      Appellant’s argument does not entitle him to relief.1

          FN1: In the course of making the foregoing complaint
          about the lack of plea bargaining by the Commonwealth,
          Appellant inserts a sketchy contention that he was denied
          the right to counsel at his preliminary hearing. This claim
          is waived as it is undeveloped.

Commonwealth v. Ramos, Nos. 1115, 1116, 1117 & 1118 MDA 2012,

unpublished memorandum at 6-7 (Pa. Super. filed April 4, 2013).




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     Appellant’s underlying denial of counsel claim lacks arguable merit. As

the PCRA court opined:

     [T]his Court notes that [Appellant] was well aware of his right to
     counsel during a Preliminary Hearing. [Appellant] received two
     continuances of his Preliminary Hearing because he did not have
     counsel.      [Appellant]’s September 7, 2010 hearing was
     continued until October 5, 2010.      In addition, [Appellant]’s
     October 5, 2010 hearing was continued until October 19, 2010.
     Upon receiving his second continuance, [Appellant] was warned
     by the Court that he must secure an attorney by the new date of
     October 19, 2010 or he will be deemed to have waived counsel
     and he will proceed pro se. [Appellant] still appeared without an
     attorney at the October 19, 2010 Preliminary Hearing.
     [Appellant], however, brought his nephew as a witness, who
     testified at the Preliminary Hearing.

     At the June 25, 2015 [PCRA] hearing, First ADA Lauren Sulcove
     stated that she confirmed that [Appellant] had no public
     defender appointed to him before the October 19 Preliminary
     Hearing date. Defendant stated that he applied three times for a
     public defender, including right before the October 19
     Preliminary Hearing date.     The Commonwealth asserts that
     [Appellant] only applied for a public defender once and it was
     right before the October 19 [P]reliminary [H]earing date.

     This Court finds that [Appellant]’s testimony was not credible
     during the PCRA hearing. Defendant had ample opportunity to
     find a public defender or private counsel. [Appellant], however,
     by his own admission, sought a public defender shortly before
     the October 19 hearing date and time. This Court finds that
     [Appellant] waited until the October 19 Preliminary Hearing date
     to apply for counsel as he knew that no further continuances
     would be granted due to his lack of counsel. There is no
     evidence to substantiate [Appellant]’s claim that he applied for a
     public defender on two occasions prior to the October 19
     Preliminary Hearing date. [Appellant] appears to have been
     playing games with the Court as he kept seeking continuances,
     and when he knew he would not be given another continuance,
     he applied for a public defender at the last moment in hopes of
     further stalling the judicial process.




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       Unlike the Preliminary Hearing in Tuggle,[4] [Appellant] did not
       have multiple Preliminary Hearings on different days.         In
       addition, unlike the circumstances in Tuggle, it appears that
       [Appellant] impliedly acquiesced to proceeding without counsel
       by not making an attempt to acquire counsel until the last
       moment and by bringing his nephew as a witness to the
       Preliminary Hearing.

PCRA Court Opinion, filed 9/18/15, at 3-4.

       As noted by the PCRA court, the evidence shows that Appellant

forfeited his right to counsel. See Commonwealth v. Travillion, 17 A.3d

1247, 1247-48 (Pa. 2011) (concluding that the appellant forfeited counsel

where he had insisted on privately retained counsel but took no steps to

secure counsel). See also Commonwealth v. Lucarelli, 971 A.2d 1173,

1179-80 (Pa. 2009) (holding that “Pa.R.Crim.P. 121 [regarding waiver of

counsel] and its colloquy requirements do not apply to situations where

forfeiture is found.”). As such, Appellant’s right to counsel claim lacks merit.

Because the underlying claim is without merit, Appellant’s ineffectiveness

claim fails.

       The record supports the PCRA court’s findings and its Order is

otherwise free of legal error. Accordingly, we affirm.




4
    Commonwealth v. Tuggle, 380 A.2d 373 (Pa. Super. 1977).



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     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/1/2016




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