J. S 1 5 0 40 /1 8

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 E DA 20 16

: 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.

ME MORANDUM 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 Cou nty 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.J. S 1 5 0 40 /1 8

- 2

- motion for reconsideration of sentence; it was denied on August 9, 2007. [Appellant] filed a notice of appeal, and on September 22, 2008, [appella nt ’ 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. Da vid 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] A mended 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. ” O n 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 i nstruction 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 aJ. S 1 5 0 40 /1 8

- 3

- 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, t he 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 rep resented 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 Petit ion. 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 Amend ed 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

newl y

- appointed PCRA counsel failed to include [appellant ’ s] alleged Confrontation Claim; [appellant] subsequently elected to proceed with his

counsel.J. S 1 5 0 40 /1 8

- 4

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

Irreconcila ble 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 co unsel, 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 Ma y 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 Superi or Court ’ s Order.

Trial court opinion , 1/11/17 at 1

- 4 (footnote s 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 toJ. S 1 5 0 40 /1 8

- 5

-

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

appellant waives thi s 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 rai sed in a

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

Order affirmed.

2 We note that i n 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 ineffective ness for amending appellant ’ s PCRA petition and failing to include a claim of trial counsel ’ s ineffect iveness 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 co unsel. (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 pl ed 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 t o a remand for an evidentiary hearing. ( Id. at 2.)J. S 1 5 0 40 /1 8

- 6

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/16/18