J-A08042-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SAMUEL WALLACE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 471 EDA 2020

Appeal from the PCRA Order Entered December 13, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0011143-2012

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 4, 2021

Appellant, Samuel Wallace, appeals from the December 13, 2019, order 

entered in the Court of Common Pleas of Philadelphia County, which dismissed 

Appellant’s first petition filed under the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-9546. After a careful review, we affirm.

Appellant was charged with various sex offenses committed against the 

minor daughter of his girlfriend. This Court previously summarized the 

evidence offered at Appellant’s jury trial and the procedural history, in part, 

as follows:

In October 2011, [Appellant] and [H.C.] began a dating 

relationship. In February 2012, [Appellant] moved into [H.C.]’s 

house where [H.C.]’s daughters, K.C. and [M.], also resided. N.T., 

09/19/2013, at 194-95. In June 2012, K.C., who was then 14 

years old, attended a cookout at her aunt’s house in Philadelphia 

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* Former Justice specially assigned to the Superior Court.
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in celebration of her eighth-grade graduation. At one point during 

the cookout, K.C. was upstairs watching television. [Appellant] 

came into the room where K.C. was watching television and 

started to tickle her all over her body. Although Appellant’s 

tickling made her uncomfortable, K.C. did not tell anyone about 

the incident because she believed her mother was happy to be 

dating [Appellant]. Id. at 57-59, 158-60.

A few days later, K.C. was alone with her sister in her 

mother’s apartment in Philadelphia. [Appellant] started to touch 

K.C., including kissing and blowing on her neck. K.C. went into a 

bathroom to get away from [Appellant] and closed the bathroom 

door. [Appellant] attempted to open the bathroom door, but he 

ultimately walked away. K.C. did not say anything to her mother 

about this incident because she was scared. Id. at 59-61, 160-

61.

On June 17, 2012, K.C. moved into her grandmother’s 

house in Philadelphia with her mother and sister. Around 9:00 

p.m. or 10:00 p.m. that night, K.C. was downstairs watching a 

movie when [Appellant] came into the room and started to touch 

her all over her body, including her neck and chest. As he was 

touching her, [Appellant] was telling K.C. that she was beautiful. 

[Appellant] then took off his pants and put his penis in between 

her thighs. As he was behind her, he started to go back and forth

with his penis between her thighs. Shortly thereafter, [Appellant] 

ejaculated into his hand and then ran into the kitchen. K.C. did 

not say anything to her mother about this incident because she 

was scared. Id. at 61-66, 142-52, 170-72.

On June 21, 2012, K.C. was sleeping in her grandmother’s 

room with her sister when [Appellant] woke her up around 9:00 

a.m. and told her to come to the middle bedroom. K.C.’s mother 

was not home at the time. When K.C. entered the middle 

bedroom, [Appellant] removed his pants and laid on top of her. 

K.C. was wearing a long t-shirt and underwear. [Appellant] 

removed K.C.’s underwear, pushed down on her shoulders with 

his hands, put her legs up in the air, and started thrusting with 

his penis back and forth into her vagina. [Appellant] stopped 

thrusting when he had ejaculated. K.C. did not consent to 

[Appellant] inserting his penis into her vagina. Later that same 

day, [Appellant] told K.C. that “we shouldn’t be doing this 

anymore.” K.C. did not say anything to her mother or 

grandmother about this incident because she was scared that 

[Appellant] would hurt her or her sister. Id. at 66-72, 167-69, 

172-73. [However, K.C.’s mother read about the incidents in 
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K.C.’s diary, and she took K.C. to the Children’s Hospital of 

Philadelphia, after which the police were contacted.]

On September 19, 2013, a jury found [A]ppellant guilty of 

unlawful contact with a minor, statutory sexual assault, corruption 

of minors, and indecent assault of a person under 16.1 On January 

17, 2014, [A]ppellant was sentenced to an aggregate of 7 to 20 

years’ imprisonment, which sentence was in the aggravated range 

of the Sentencing Guidelines. [A] timely appeal followed.

1 18 Pa.C.S.A. §§ 6318(a)(1), 3122.1(b), 6301(a)(1)(i), and 

3126(a)(8), respectively.

Commonwealth v. Wallace, No. 679 EDA 2014, at 1-3 (Pa.Super. filed 

5/20/15) (unpublished memorandum) (footnote in original) (citation to record 

omitted).

On direct appeal, Appellant contended the trial court erred in overruling 

trial counsel’s objection to the prosecutor’s closing argument in which the 

prosecutor vouched for the victim’s credibility, and the trial court abused its 

discretion in imposing a manifestly excessive sentence. Finding no merit to 

either issue, this Court affirmed Appellant’s judgment of sentence. See id. 

Appellant filed a timely petition for allowance of appeal, which our 

Supreme Court denied on February 1, 2016. Appellant did not file a petition 

for a writ of certiorari with the United States Supreme Court.1

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1 Since Appellant did not file a petition for a writ of certiorari, his judgment of 

sentence became final for PCRA purposes on Monday, May 2, 2016. See 42 

Pa.C.S.A. § 9545(b)(3) (A judgment is deemed final “at the conclusion of 

direct review, including discretionary review in the Supreme Court of the 

United States and the Supreme Court of Pennsylvania, or at the expiration of 

time for seeking the review.”); U.S. Supreme Court Rule 13 (effective January 

(Footnote Continued Next Page)
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On May 1, 2017, Appellant filed a timely pro se PCRA petition,2 and the 

lower court appointed counsel, who filed an amended PCRA petition on 

October 29, 2018. The Commonwealth filed a motion to dismiss Appellant’s 

PCRA petition.

On December 13, 2019, the PCRA court granted Appellant collateral 

relief, in part, as it applied to Appellant’s registration requirements under 

SORNA.3 The PCRA court denied Appellant’s PCRA petition in all other 

respects. 

On December 13, 2019, Appellant filed a counseled notice of appeal. On 

December 23, 2019, the PCRA court filed a Pa.R.A.P. 1925(b) order. Therein, 

the lower court directed Appellant to file of record and serve upon the trial 

court a concise statement of errors complained of on appeal within twentyone days of the order. The lower court warned Appellant that any issue not 

presented in the Rule 1925(b) statement shall be deemed waived. 

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1, 1990) (stating that a petition for writ of certiorari to review a judgment of 

sentence is deemed timely when it is filed within 90 days); 1 Pa.C.S.A. § 1908 

(“When any period of time is referred to in any statute, such period in all 

cases,...shall be so computed as to exclude the first and include the last day 

of such period. Whenever the last day of any such period shall fall on Saturday 

or Sunday,...such day shall be omitted from the computation.”).

2 A PCRA petition is timely if it is filed within one year of the date the underlying 

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). 

3 Sexual Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. 

§§ 9799.10 to 9799.42.
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Accordingly, the lower court’s order complied with the mandates of Pa.R.A.P. 

1925(b)(3). 

Further, the record reveals that the Clerk of Courts mailed the lower 

court’s Pa.R.A.P. 1925(b) order to Appellant’s counsel on December 23, 2019, 

via regular mail. On December 24, 2019, Appellant’s counsel filed a Rule 

1925(b) statement in which he presented the sole issue:

1. The PCRA court erred in dismissing Appellant’s PCRA Petition 

without a hearing because trial counsel was ineffective for 

failing to present character evidence in relation to [Appellant’s] 

reputation for being non-violent, [Appellant] was prejudiced as 

a result, and this matter should be remanded for an evidentiary 

hearing and/or new trial. [Amended] PCRA Pet., at 4-8.

Appellant’s Counseled Rule 1925(b) Statement, filed 12/24/19.

On May 12, 2020, the PCRA court filed a Rule 1925(a) opinion 

suggesting there is no merit to Appellant’s claim. 

On appeal, Appellant sets forth the following issues in his “Statement of 

Questions Involved” (verbatim):

1) Did the PCRA court err in dismissing the PCRA petition without 

a hearing, where trial counsel was ineffective for failing to

present character witnesses on Appellant’s behalf at trial, who 

would have testified to the Appellant’s reputation for being 

peaceful and non-violent, where the charges at issue were 

crimes of violence?

2) Was trial counsel ineffective for failing to present a defense 

expert in pediatrics and sexual assault of children, to rebut 

uncontested testimony of the Commonwealth’s expert witness 

who asserted the absence of injuries was consistent with sexual 

intercourse/sexual assault, where the rebuttal of this testimony 

would have likely changed the outcome of the trial where no 

physical/medical existed that a sexual assault occurred, and 

where credibility was the central issue?
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Appellant’s Brief at 4.

In his first issue, Appellant contends trial counsel was ineffective in 

failing to call character witnesses who would have testified that Appellant has 

a reputation in the community as a peaceful, non-violent person. Specifically, 

Appellant asserts the character witnesses were known to trial counsel and 

available to testify. 

In addressing the grant or denial of post-conviction relief, we consider 

whether the PCRA court’s conclusions are supported by record evidence and 

are free of legal error. Commonwealth v. Sattazahn, 597 Pa. 648, 952 

A.2d 640, 652 (2008). “We must accord great deference to the findings of 

the PCRA court, and such findings will not be disturbed unless they have no 

support in the record.” Commonwealth v. Scassera, 965 A.2d 247, 249 

(Pa.Super. 2009) (citation omitted).

Because there is a presumption that counsel provided effective 

representation, the defendant bears the burden of proving ineffectiveness. 

Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282 (2010). To prevail on an 

ineffective assistance claim, a defendant must establish “(1) [the] underlying 

claim is of arguable merit; (2) the particular course of conduct pursued by 

counsel did not have some reasonable basis designed to effectuate his 

[client’s] interests; and (3) but for counsel’s ineffectiveness, there is a 

reasonable probability that the outcome of the proceedings would have been 
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different.” Id., supra, 10 A.3d at 291 (citations omitted). A failure to satisfy 

any prong of the test for ineffectiveness will require rejection of the claim. Id.

A defense counsel’s failure to call a particular witness to testify does not 

constitute ineffectiveness per se. Commonwealth v. Cox, 603 Pa. 223, 983 

A.2d 666, 693 (2009) (citation omitted). “In establishing whether defense 

counsel was ineffective for failing to call witnesses, a defendant must prove 

the witnesses existed, the witnesses were ready and willing to testify, and the 

absence of the witnesses’ testimony prejudiced petitioner and denied him a 

fair trial.” Id.

Further, a claim that counsel was ineffective for failing to call character 

witnesses lacks arguable merit where the trial court conducted a colloquy of 

the defendant at trial, and the defendant agreed with counsel’s decision not 

to present such witnesses. See Commonwealth v. Pander, 100 A.3d 626, 

642 (Pa.Super. 2014) (en banc). “[A] defendant who makes a knowing, 

voluntary, and intelligent decision concerning trial strategy will not later be 

heard to complain that trial counsel was ineffective on the basis of that 

decision.” Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 316 (2002) 

(citation omitted). Accordingly, “[a] defendant who voluntarily waives the 

right to call witnesses during a colloquy cannot later claim ineffective 

assistance and purport that he was coerced by counsel.” Commonwealth v. 

Lawson, 762 A.2d 753, 756 (Pa.Super. 2000).
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In the case sub judice, at the close of the Commonwealth’s case-in-chief

at trial, the trial court conducted an oral colloquy of Appellant regarding the

witnesses he intended to call to testify. Specifically, the following relevant 

exchange occurred:

THE COURT: Do you understand you have the absolute right 

to testify in this matter?

[APPELLANT]: Yes.

THE COURT: And do you understand that it’s your right and 

your right alone, it’s not your attorney’s right, it’s your right to 

decide whether you wish to testify in this matter?

[APPELLANT]: Yes.

THE COURT: And have you talked with your attorney about 

your right to testify and perhaps strategic reasons, maybe why 

you would or would not want to testify?

[APPELLANT]: Yes. 

THE COURT: Most recently, I think you did so this morning; 

am I right?

[APPELLANT]: Yes.

THE COURT: And have you reached a decision whether you 

wish to testify as part of this trial?

[APPELLANT]: Yes, I have.

THE COURT: And what is your decision?

[APPELLANT]: That I would testify.

THE COURT: Did anyone promise you or threaten you to 

make that decision?

[APPELLANT]: No, sir.

THE COURT: And I’ll ask you one more time, do you wish to 

testify or not testify in this matter?

[APPELLANT]: I wish to testify in this matter.

THE COURT: And other than your own testimony, is 

there any other witnesses that you wish to have testify on 

your behalf or other evidence you wish to have present that 

you haven’t informed counsel? 
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[APPELLANT]: No, sir.

THE COURT: All right. So, it’s just going to be your 

testimony and that’s is?

[APPELLANT]: Yes, sir.

[DEFENSE COUNSEL]: Your Honor, just to address 

maybe something that you could have been getting at, is 

there are no other fact witnesses that I would present. But 

also, I am not in a position to present character testimony 

in this case. 

THE COURT: I understand. 

N.T., 9/18/13, at 62-64 (bold added). 

In rejecting Appellant’s claim that counsel was ineffective in failing to 

call character witnesses, the trial court indicated the following:

[T]he claim has no arguable merit because [Appellant] was 

colloquied [sic] by the trial court concerning whether [Appellant] 

would be presenting any witnesses, other than [Appellant’s] own 

testimony at trial. [Appellant] responded, “No, sir.” During the 

same exchange, trial counsel stated, “there are no other fact 

witnesses that I would present. But also, I am not in a position 

to present character testimony in this case.” N.T. 09/18/13 at 63-

64. Trial counsel made a strategic decision not to present 

testimony that [Appellant] was peaceful and law-abiding[, and 

Appellant agreed].

PCRA Court Opinion, filed 5/12/20, at 6.

We agree with the PCRA court’s sound reasoning. Based on Appellant’s 

representations at trial, to which he is bound, Appellant may not now assert 

that trial counsel was ineffective for failing to present character witnesses. 

See Pander, supra. Simply put, Appellant chose not to call the witnesses 

that he now faults trial counsel for failing to present at trial. However, 

Appellant may not now assert that trial counsel was ineffective for failing to 
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present additional witnesses where Appellant informed the trial court he did 

not wish to present any additional witnesses or evidence at trial. See id. 

Thus, his claim has no merit. 

In his second issue, Appellant contends trial counsel was ineffective in 

failing to present a defense expert in pediatrics and sexual assault of children 

in order to rebut the Commonwealth’s expert witness who asserted the 

absence of injuries was consistent with sexual intercourse/sexual assault. We 

find this issue to be waived for appellate review.

“[I]n order to preserve [] claims for appellate review, [an] appellant 

must comply whenever the trial court orders [the appellant] to file a 

Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. 

Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed 

waived.” Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775, 780 

(2005) (quotation marks and quotation omitted). See Pa.R.A.P. 

1925(b)(4)(vii). 

In the case sub judice, Appellant presented no claim in his court-ordered 

Rule 1925(b) statement with regard to trial counsel’s failure to present a 

defense expert in pediatrics and sexual assault of children in order to rebut 

the Commonwealth’s expert witness. Thus, this issue is waived on this basis. 

See id.

Finally, we note that, on January 23, 2021, Appellant filed a counseled 

document in this Court entitled “Application for a remand in order to file an 
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amended/supplemental PCRA petition-no defense expert.”4 Therein, 

Appellant admits he failed to include in either his pro se or counseled amended 

PCRA petition the claim that trial counsel was ineffective in failing to present 

an expert in pediatrics and sexual assault of children in order to rebut the 

Commonwealth’s expert. Appellant requests we remand this case so that he 

may include trial counsel’s alleged deficiency in a supplemental or amended 

PCRA petition. 

Appellant has proffered no reason as to why this issue was not raised in 

his initial or supplemental PCRA petitions, and he has not otherwise 

demonstrated an entitlement to the relief requested. Further, as indicated 

supra, the issue is otherwise waived under Pa.R.A.P. 1925(b).5 Accordingly, 

we deny the application.

Order Affirmed; Application for a remand in order to file an 

amended/supplemental PCRA petition-no defense expert is hereby Denied.

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4 On February 17, 2021, this Court filed a per curiam order deferring the 

motion to the merits panel.

5 Appellant made no request to supplement his Rule 1925(b) statement. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/04/2021