Com. v. Rama, J. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JEWEL RAMA, : No. 1950 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered April 26, 2019,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0003127-2018
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED AUGUST 25, 2020
Jewel Rama appeals from the April 26, 2019 judgment of sentence
entered by the Court of Common Pleas of Berks County following appellant’s
conviction of one count of sexual assault.1 After careful review, we affirm.
On January 16, 2019, a jury convicted appellant of one count of sexual
assault.2 The trial court sentenced appellant to a term of 42 months to
8 years’ imprisonment on April 26, 2019. Appellant filed a timely
post-sentence motion to reconsider sentence, which was denied by the trial
court on November 4, 2019. On December 3, 2019, appellant filed a timely
notice of appeal.
1 18 Pa.C.S.A. § 3124.1.
2The jury acquitted appellant of one count of rape and two counts of indecent
assault.
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The trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant timely
complied. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
January 17, 2020.
Appellant raises the following issue for our review:
Did the trial counsel provide ineffective assistance of
counsel by failing to investigate and call at trial
character witnesses who were available and would
have testified that appellant had an excellent
reputation for being moral, truthful, peaceful, and
law-abiding?
Appellant’s brief at 3 (full capitalization omitted).
Our supreme court has held that, “as a general rule, a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review.” Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Our
supreme court later held,
Grant’s general rule of deferral to PCRA[3] review
remains the pertinent law on the appropriate timing
for review of claims of ineffective assistance of
counsel; we disapprove of expansions of the exception
to that rule recognized in [Commonwealth v.]
Bomar, [826 A.2d 831 (Pa. 2003)]; and we limit
Bomar, a case litigated in the trial court before Grant
was decided and a time when new counsel entering a
case upon post-verdict motions was required to raise
ineffectiveness claims at the first opportunity, to its
pre-Grant facts. We recognize two exceptions,
however, both falling within the discretion of the trial
judge. First, we appreciate that there may be
extraordinary circumstances were a discrete claim (or
claims) of trial counsel ineffectiveness is apparent
3 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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from the record and meritorious to the extent that
immediate consideration best serves the interests of
justice; and we hold that trial courts retain their
discretion to entertain such claims. []
Second . . . where the defendant seeks to litigate
multiple or prolix claims of counsel ineffectiveness,
including non-record-based claims, on post-verdict
motions and direct appeal, we repose discretion in the
trial courts to entertain such claims, but only if
(1) there is good cause shown, and (2) the unitary
review so indulged is preceded by the defendant’s
knowing and express waiver of his entitlement to seek
PCRA review from his conviction and sentence,
including an express recognition that the waiver
subjects further collateral review to the time and
serial petition restrictions of the PCRA.
Commonwealth v. Stollar, 84 A.3d 635, 652 (Pa. 2014), cert. denied
sub nom. Stollar v. Pennsylvania, 572 U.S. 1050 (2014), quoting
Commonwealth v. Holmes, 79 A.3d 562, 563-564 (Pa. 2013). In
Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018), our supreme
court recognized a third exception to the general rule set forth in Grant,
holding that a defendant may raise an ineffective assistance of counsel claim
in cases where he or she would be statutorily precluded from raising an
ineffectiveness claim on collateral review.
In the instant appeal, the trial court concluded that appellant’s
allegations of ineffective assistance of counsel were not apparent from the
record. Specifically, the trial court noted that, “[h]aving had new counsel
retained, [a]ppellant could have raised this issue in his post sentence motion.
At the post sentence motion [hearing], trial counsel could have been called as
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a witness and a record developed.” (Trial court opinion, 1/17/20 at
unnumbered pages 3-4.) Moreover, the record does not indicate that
appellant has knowingly and expressly waived his collateral review rights.
Finally, the trial court sentenced appellant to a term of 42 months to eight
years’ imprisonment. Accordingly, appellant is not statutorily precluded from
seeking collateral review. See Delgros, 183 A.3d at 361; 42 Pa.C.S.A.
§ 9543(a)(1)(i).
Therefore, we dismiss appellant’s claim without prejudice for him to
raise it on collateral review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/25/2020
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