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[U] Commonwealth v. Ramos

Superior Court of Pennsylvania

June 12, 2013



Appeal from the Judgment of Sentence entered July 26, 2012 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001088-2012, CP-06-CR-0001090-2012




Appellant, Michael A. Ramos, appeals from the judgment of sentence entered on July 26, 2012, following his jury trial convictions of two counts of escape and one count of flight to avoid apprehension.[1] After careful consideration, we affirm.

We summarize the facts and procedural history of this case as follows. On February 14, 2012, three members of the Boyerstown Police Department responded to an address on East Philadelphia Avenue to execute an arrest warrant for Appellant after receiving a telephone call that Appellant was present inside. One officer positioned himself at the front door, while two others approached the house from the rear. Police announced their presence at the rear of the residence and stated that they had a warrant for Appellant's arrest. The person who called the police opened the rear door and confirmed that Appellant was inside. Officer Barry Koch took a step inside the residence, called Appellant's name and told him police had an arrest warrant for him. Officer Koch heard what he described as a door lock, or latch, closing in another room inside the house. Officer Johnny Perez was stationed in front of the residence. He could hear other officers yelling in the backyard when the front door was thrown open and Appellant came outside. Officer Perez, who was in a police uniform, told Appellant to stop and get down or be shot with a taser. Appellant momentarily looked at Officer Perez and then ran down the steps and down the sidewalk. Officer Perez gave chase and yelled "taser" three times. Appellant continued running, Officer Perez unsuccessfully deployed his taser, and Appellant absconded.

The following day, Boyerstown Police Chief Barry Leatherman responded to a call that Appellant was at the Boyerstown Community Park. When Chief Leatherman approached Appellant, who was sitting in a pavilion, Appellant ran. Chief Leatherman identified himself as a police officer, commanded Appellant to stop, and told Appellant he was under arrest. Appellant looked at the approaching officer, but continued running. Police chased Appellant through the woods, a trailer park, a farm field, and then across Route 100, a busy, 4-lane divided highway. Police apprehended Appellant in a field shortly thereafter. The chase lasted approximately 45 minutes.

The Commonwealth initially charged Appellant in two separate bills of criminal information, but the cases were consolidated for trial. Appellant filed a motion to sever, but the trial court denied relief by order entered on June 28, 2012. The Commonwealth moved to amend the bills of criminal information, grading the two escape charges as felonies of the third-degree instead of second-degree misdemeanors. On June 28, 2012, the trial court granted the prosecution's motion and entered an order amending the criminal informations as the Commonwealth requested. A two-day trial ensued wherein a jury convicted Appellant of the aforementioned crimes. On July 26, 2012, the trial court sentenced Appellant to two to four years of imprisonment on the first escape offense, with a consecutive term of imprisonment of nine months to four years on the second escape offense. The trial court determined the flight to avoid apprehension crime merged for sentencing purposes. Appellant filed a post-sentence motion that the trial court denied on July 31, 2012. This timely appeal followed.[2]

On appeal, Appellant presents the following issues for our review:
1. Whether the evidence was insufficient to support the guilty verdicts of escape where the Commonwealth failed to establish beyond a reasonable doubt that [Appellant] was seized by the police or in official detention?
2. Whether the court committed reversible error by grading the escape offense as a felony of the third[-]degree as it should have been a misdemeanor of the second[-]degree since the warrant was for a probation violation, not for a felony charge?
3. Whether the court committed reversible error [in refusing] to sever the count[] at CP-06-CR-1090-2012 (escape) from the counts at docket CP-06-CR-1088-2012 (escape and flight to avoid apprehension) as the two cases should have been tried separately, since the acts occurred on different days, the charges were filed separately and hearing the cases together prejudiced Appellant?
4. Whether the sentencing court abused its discretion by sentencing Appellant to a consecutive sentence that was manifestly excessive and clearly unreasonable, where the sentence was contrary to the fundamental norms underlying the sentencing process, in that the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and Appellant's individual rehabilitative needs and mitigating circumstances were not considered, and where the sentence was within the sentencing guidelines but the application of the guidelines would be clearly unreasonable?

Appellant's Brief at 7-8 (complete capitalization omitted).

We have reviewed the certified record, the parties' briefs, the relevant law, and the trial court's opinion entered on October 15, 2012. The trial court first determined there was sufficient evidence to support Appellant's convictions because his two refusals to accede to the service of an arrest warrant, which established in each instance that he was under official detention, together with his subsequent flight constituted two escapes, as well as, flight to avoid apprehension. Trial Court Opinion, 10/15/2012, at 8-10. The trial court also noted that despite Appellant's testimony that he never heard officers inform him there was an active warrant, or direct him to stop because he was under arrest, or to stop or be tased, "there was ample evidence to the contrary, and it was the jury's role to make appropriate credibility determinations[.]"[3] Id. at 6. Next, the trial court rejected Appellant's argument pertaining to grading the escape convictions as felonies. Relying on our decision in Commonwealth v. Kowalski, 854 A.2d 545 (Pa. Super. 2004), the trial court properly rejected Appellant's contention that he must be serving a sentence on an underlying felony for escape to constitute a felony, as well. Instead, the trial court opined that the legislature intended to provide a more serious penalty for an escape by a convict, than a person who had been arrested, but not yet convicted. Here, the trial court determined that Appellant had been convicted of a crime and was still serving the probationary tail of his sentence when he tried to escape, therefore both escape counts were graded appropriately as third-degree felonies. Id. at 11-12. Regarding severance, the trial court found that: (1) evidence of the two incidents would be admissible in separate trials to present the complete story, because the second police interaction occurred only 12 hours later after the events of the previous day; (2) the jury was able to separate the evidence - by time, place, and witnesses - and the trial court used separate verdict slips to avoid the danger of confusion; and (3) there was no prejudice to Appellant by not severing the cases, as there was no showing that he was convicted solely by showing a propensity to commit crime. Id. at 12-14. With regard to sentencing, the trial court considered the sentencing guidelines, a presentence investigation report, the facts of the case, and the parties' statements in imposing Appellant's sentence. Id. at 18. Moreover, the trial court relied upon the facts that Appellant was a repeat offender, was on probation at the time of the escapes, and caused danger to the police giving chase. Id. Finally, while the Commonwealth requested the imposition of consecutive standard range sentences, the trial court imposed a standard range sentence on one escape charge consecutive to a mitigated sentence on Appellant's second escape conviction. Id. The trial court merged Appellant's sentence for flight to avoid apprehension. Id.

We conclude that there has been no error or abuse of discretion in this case and that the October 15, 2012 opinion meticulously, thoroughly, and accurately disposes of Appellant's issues on appeal. Therefore, we affirm on the basis of the trial court's opinion and adopt it as our own. Because we have adopted the trial court's opinion, we direct the parties to include the trial court's opinion in all future filings relating to our examination of the merits of this appeal, as expressed herein.

Judgment of sentence affirmed.

Judgment Entered.

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