J-S26007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HEATHER MARIE SELLERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 405 MDA 2022

Appeal from the PCRA Order Entered February 9, 2022,

in the Court of Common Pleas of Columbia County,

Criminal Division at No(s): CP-19-CR-0000502-2010.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED: SEPTEMBER 14, 2022

Heather Marie Sellers appeals from the order denying her first timely 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 

Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and procedural history are as follows. On September 

15, 2011, a jury convicted Sellers of two counts each of rape and involuntary 

deviate sexual intercourse based on acts she perpetuated upon her minor 

stepson.1 The trial court sentenced Sellers on November 28, 2012. After 

hearing contradictory evidence from two experts, the court did not designate 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Paul Sellers, the child’s biological father, was a co-defendant in a joint trial. 

He was convicted of two counts each of rape of a child and aggravated 

indecent assault and received the same aggregate sentence. 
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Sellers a sexually violent predator. The trial court then sentenced Sellers to 

an aggregate term of eight to twenty-two years of imprisonment. She did not 

file a post-sentence motion.

Sellers filed an appeal to this Court in which she challenged the 

sufficiency and the weight of the evidence supporting her convictions. On 

September 23, 2013, we affirmed her judgment of sentence after rejecting 

her sufficiency claim and finding her weight claim waived because it was not 

preserved below. See Commonwealth v. Sellers, 87 A.3d 389 (Pa. Super. 

213) (non-precedential decision). Sellers did not seek further review.

Sellers filed a pro se PCRA petition on April 8, 2014. The PCRA court 

appointed counsel, and PCRA counsel filed an amended petition on January 9, 

2015. Although the PCRA court scheduled an evidentiary hearing for March 

5, 2015, the hearing was not held until February 3, 2022.2 Sellers and trial 

counsel testified at the hearing. That same day, the PCRA court entered an 

order denying Seller’s amended PCRA petition. This timely appeal followed. 

Both Sellers and the PCRA court have complied with Pa.R.A.P. 1925.

Sellers raises the following two issues on appeal:

1. Whether the [PCRA] court’s order denying [Sellers’] 

PCRA petition must be reversed where [Sellers’] trial 

counsel was ineffective [for] his failure to present factual 

and character witnesses who could testify as to the 

interactions of the victim and [Sellers] and was there a 

____________________________________________

2 The certified record provides no reason for this extensive delay. The only 

motion that appears therein is the grant of a defense continuance from 

January of 2022.
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reasonable probability [that] the outcome of the 

proceedings would have been different but for counsel’s 

inaction.

2. Whether the [PCRA] court’s order denying [Sellers’] 

PCRA petition must be reversed where [Sellers’] trial 

counsel was ineffective [for] his failure to fille a post 

sentencing motion with the trial court thereby preserving 

a weight-of-the-evidence claim for appeal and was there 

a reasonable possibility [that] the outcome of the 

proceedings would have been different but for counsel’s 

inaction.

Sellers’ Brief at 4 (excess capitalization omitted).

Our scope and standard of review are well settled:

In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record 

of the PCRA court's hearing, viewed in the light most 

favorable to the prevailing party. Because most PCRA 

appeals involve questions of fact and law, we employ a 

mixed standard of review. We defer to the PCRA court's 

factual findings and credibility determinations supported by 

the record. In contrast, we review the PCRA court's legal 

conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) 

(citations omitted).

Both of Sellers’ issues claim that trial counsel was ineffective. To obtain 

relief under the PCRA premised on a claim that counsel was ineffective, a 

petitioner must establish by a preponderance of the evidence that counsel’s 

ineffectiveness so undermined the truth determining process that no reliable 

adjudication of guilt or innocence could have taken place. Commonwealth 

v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s 

performance is presumed to be constitutionally adequate, and counsel will 
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only be deemed ineffective upon a sufficient showing by the petitioner.” Id. 

This requires the petitioner to demonstrate that: (1) the underlying claim is 

of arguable merit; (2) counsel had no reasonable strategic basis for his or her 

action or inaction; and (3) petitioner was prejudiced by counsel's act or 

omission. Id. at 533. A finding of "prejudice" requires the petitioner to show 

"that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different." Id. A failure 

to satisfy any prong of the test for ineffectiveness will require rejection of the 

claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

In her first issue, Sellers asserts that that trial counsel was ineffective 

for failing to call factual and/or character witnesses on her behalf at trial. 

According to Sellers, she “provided names of witnesses to [trial] counsel to 

provide testimony to add to [her] credibility and to discredit the victim’s 

allegation of sexual abuse.” Sellers’ Brief at 9. She further asserts that trial

counsel did not contact these witnesses.

As we have observed:

When raising a claim of ineffectiveness for failure to call a 

potential witness, a petitioner satisfies the performance and 

prejudice requirements of the [Strickland v. Washington, 

466 U.S. 668 (1984)] test by establishing that: (1) the 

witness existed; 2) the witness was available to testify for 

the defense; (3) counsel knew of, or should have known of, 

the existence of the witness; (4) the witness was willing to 

testify for the defense; and (5) the absence of the testimony 

of the witness was so prejudicial as to have denied the 

defendant a fair trial[.]
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Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (quoting 

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012)).

Sellers has failed to meet her burden of proof. Although her trial counsel 

knew of the witness and did not contact them—facts trial counsel conceded at 

the evidentiary hearing—Sellers has not established the remaining Matias

factors. Importantly, Sellers did not call any of these witnesses to testify at 

the PCRA hearing. Claims of trial counsel’s ineffectiveness are not self-proving 

and therefore cannot be raised in a vacuum. See generally, 

Commonwealth v. Pettus, 424 A.2d 1332 (Pa. 1981).

Moreover, the PCRA court credited trial counsel’s PCRA hearing 

testimony that, as a matter of trial strategy, he had legitimate reasons for 

deciding “who to call and who not to call as witnesses.” PCRA Court Opinion, 

4/11/22, at 2. We cannot disturb this determination. See Commonwealth 

v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility 

determinations are solely within the province of the PCRA court).

Finally, the PCRA court concluded that, “[u]nder all the facts, the 

strategy was not unreasonable.” PCRA Court Opinion, 4/11/22, at 2. The 

following exchange between PCRA counsel and trial counsel supports this 

conclusion:

[BY TRIAL COUNSEL:]

[Co-defendant’s counsel] and I did kind of do a joint 

defense with the two defendants.

***
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We also discussed the fact that we had here in this case 

various other individuals who were accused of and admitted, 

in fact, one of them had admitted abuse of this [victim], so 

we didn’t feel that medical records would put anything into 

play that we didn’t think was already in play with the abuse 

done by another individual.

We also, as a matter of strategy, we also were concerned 

about continuing to bring in all different evidence of abuse 

and different people and that type of thing as confusing the 

jury, so we made a determination not to go with that.

[BY PCRA COUNSEL:]

Q. Do you remember [Sellers] bringing up the three 

names that she mentioned in terms of witnesses who had 

helped elaborate on how [the victim] interacted with the 

family?

A. I do recall the names, and, again, [co-defendant’s 

counsel] and I had done it jointly, we discussed those 

individuals. And, you know, Pennsylvania has a pretty high 

standard for, if you’re talking about character evidence, 

[you] have to go through the step of saying that you know 

people in the community who know their [trait] for 

truthfulness, that type of thing. 

And I have also - - in my trial experience, I have had, 

unfortunately, a number of situations where those kind of 

witnesses blow up and witnesses get on and don’t have 

much to say or don’t meet the standard for testimony with 

regard to character witnesses.

So again, after consultation, [co-defendant’s counsel] 

and I determined that it was best not to proceed with them 

but to let [Sellers] and Paul who we, right or wrong, felt - -

and [Sellers] was a good defendant for me and she 

cooperated fully with me and Paul did, too. I had known 

Paul before for representation and we really felt that the two 

of them were the best ones to put on the evidence by their 

own testimony and got rid of some of the possibilities that 

go on with character evidence.

Q. So you did not speak with any of those individuals?

A. We did not, no.
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N.T., 2/3/22, at 22-24 (excess capitalization omitted). Upon crossexamination, the Commonwealth confirmed with trial counsel that any 

decisions he made about who he would call as witnesses and what evidence

to present were all “matters of trial strategy.” Id. at 34-35.

Our Supreme Court has repeatedly ruled that

a petitioner is not entitled to relief because counsel’s trial 

strategy was unsuccessful; when the course chosen was 

reasonable, counsel cannot be faulted for failing to pursue a 

different path. Speculation by hindsight that a different 

strategy might possibly have been successful is not the test 

which establishes ineffectiveness of counsel.” 

Commonwealth v. Fisher, 813 A.2d 761, 767 (Pa. 2002) (citation omitted). 

To sustain a claim of ineffectiveness predicated on strategy, a litigant must 

prove that the strategy employed by trial counsel "was so unreasonable that 

no competent lawyer would have chosen that course of conduct." 

Commonwealth v. Chmiel, 889 A.2d 501, 541 (Pa. 2005). Sellers cannot 

meet this burden. As mentioned above, Sellers failed to present any potential 

witnesses that were available and willing to testify as to pertinent facts or 

character traits.3 Thus, Sellers’ first ineffectiveness claim fails.

In her second issue, Sellers argues that trial counsel did not file a postsentencing motion to preserve the weight of the evidence issue for direct 

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3

Indeed, Sellers asserted only that she “identified three (3) names in 

particular who were individuals who were around [Sellers], her spouse, and 

the victim in several different settings.” Sellers’ Brief at 7.
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appeal. See Sellers’ Brief at 9. According to Sellers, “[t]here is a reasonable 

probability that the outcome of the lower court proceedings would have been 

different but for [trial] counsel’s actions or inaction.” Id. We disagree.

Because we find Sellers’ underlying challenge to the weight of the 

evidence to be without arguable merit, trial counsel was not ineffective for 

failing to preserve this issue on direct appeal. Johnson, supra. 

When we review a challenge to the weight of the evidence, we do not 

actually examine the underlying question; instead, we examine the trial 

court’s discretion in resolving the challenge. Commonwealth v. Leatherby, 

116 A.3d 73, 82 (Pa. Super. 2015) (citation omitted). This type of review is 

necessitated by the fact that the trial court heard and saw the evidence 

presented. Id. Moreover, “[o]ne of the least assailable reasons for granting 

or denying a new trial is the trial court’s belief that the verdict was or was not 

against the weight of the evidence and that a new trial should be granted in 

the interests of justice.” Id. 

In this context, a new trial is warranted only when the verdict is “so 

contrary to the evidence that it shocks one’s sense of justice and the award 

of a new trial is imperative so that right may be given another opportunity to 

prevail.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation 

omitted). It is essential to note that the finder of fact “exclusively weighs the 

evidence” and “assesses the credibility of witnesses.” Commonwealth v. 

Konias, 136 A.3d 1014, 1023 (Pa. Super. 2016).
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Here, the PCRA court noted that in its opinion prepared for Sellers’ direct 

appeal it “ruled that the evidence was sufficient to support a conviction and 

the weight of the evidence supported the verdict.” PCRA Court Opinion, 

4/11/22, at 2. Referencing Sellers’ direct appeal, the court further stated 

“both [the trial] court and the Superior Court noted that a major issue for the 

jury was credibility. The jury apparently believed the Commonwealth 

witnesses and found [Sellers] guilty.” Id. at 2-3.

Indeed, at sentencing, in reference to Sellers renewed motion for 

judgment of acquittal, the court stated:

[W]hat we had here was basically [Sellers] word against 

a fifth grader who was looking back five years. Okay, that’s 

what we had here. The jury believed the fifth grader looking 

back five years. Under an arrest of judgment, I cannot 

reverse a case based upon credibility determinations, and

that’s what it was. I cannot do that. Legally I cannot do 

that. 

N.T., 11/28/12, at 44. The same would hold true had Sellers’ trial counsel 

raised a weight challenge on direct appeal. Konias, supra. Thus, Sellers’ 

second ineffectiveness claim fails.

In sum, because the record supports the PCRA court’s conclusion that 

Sellers’ trial counsel had a reasonable trial strategy, and a weight of the 

evidence challenge on appeal would have been meritless, we affirm the PCRA 

court’s order denying Sellers post-conviction relief. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/14/2022