J. S27014/15

 

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

SAMUEL S. WALLACE, : No. 679 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, January 17, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0011143-2012

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 20, 2015

Appellant appeals from the judgment of sentence imposed following 

his conviction for various sex offenses committed against the minor daughter 

of his girlfriend. Finding no merit in the issues raised on appeal, we affirm.

The trial court accurately summarized the factual background:

In October 2011, Defendant and [H.C.] began 

a dating relationship. In February 2012, Defendant 

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 in celebration of her eighth-grade 

graduation. At one point during the cookout, K.C. 

was upstairs watching television. Defendant came 

into the room where K.C. was watching television 

and started to tickle her all over her body. Although 

Defendant’s tickling made her uncomfortable, K.C. 

did not tell anyone about the incident because she 

believed her mother was happy to be dating 

Defendant. Id. at 57-59, 158-60.
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A few days later, K.C. was alone with her sister 

in her mother’s apartment in Philadelphia. 

Defendant started to touch K.C., including kissing 

and blowing on her neck. K.C. went into a bathroom 

to get away from Defendant and closed the 

bathroom door. Defendant 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 her sister. Around 9:00pm or 10:00pm that 

night, K.C. was downstairs watching a movie when 

Defendant came into the room and started to touch 

her all over her body, including her neck and chest. 

As he was touching her, Defendant was telling K.C. 

that she was beautiful. Defendant 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, 

Defendant 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 Defendant 

woke her up around 9:00am 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, 

Defendant removed his pants and laid on top of her. 

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

Defendant 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. Defendant stopped thrusting 

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

Defendant inserting his penis into her vagina. Later 

that same day, Defendant told K.C. that “we 

shouldn’t be doing this anymore.” K.C. did not say 

anything to her mother or grandmother about this 
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incident because she was scared that Defendant 

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

172-73.

Trial court opinion, 11/3/14 at 1-3.

On September 19, 2013, a jury found appellant guilty of unlawful 

contact with minor, statutory sexual assault, corruption of minors, and 

indecent assault of a person under 16.1 On January 17, 2014, appellant was 

sentenced to an aggregate 7 to 20 years’ imprisonment, which sentence was 

in the aggravated range of the Sentencing Guidelines. This timely appeal 

followed.

Appellant raises two issues on appeal:

I. Did the Honorable Court err when it overruled 

the Defendant’s well placed objection during 

the closing argument of the prosecutor, where 

the prosecutor, by the totality of her words, 

vouched for the truth of the complaining 

witness?

II. Is the Defendant entitled to a remand to the 

Sentencing Court for a new sentencing hearing 

where the Sentencing Court abused its 

discretion and imposed a sentence that was 

manifestly excessive?

Appellant’s brief at 3. We will address these matters in the order presented.

Our standard of review for a claim of prosecutorial 

misconduct is limited to whether the trial court 

abused its discretion. In considering this claim, our 

attention is focused on whether the defendant was 

deprived of a fair trial, not a perfect one. Not every 

inappropriate remark by a prosecutor constitutes 

 

1 18 Pa.C.S.A. §§ 6318(a)(1), 3122.1(b), 6301(a)(1)(i), and 3126(a)(8), 

respectively.
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reversible error. A prosecutor’s statements to a jury 

do not occur in a vacuum, and we must view them in 

context. Even if the prosecutor’s arguments are 

improper, they generally will not form the basis for a 

new trial unless the comments unavoidably 

prejudiced the jury and prevented a true verdict.

Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa.Super. 2013), appeal 

denied, 80 A.3d 777 (Pa. 2013), quoting Commonwealth v. Lewis, 39 

A.3d 341, 352 (Pa.Super. 2012), appeal denied, 51 A.3d 838 (Pa. 2012) 

(internal quotes and citations omitted).

The nature of the prosecutorial misconduct alleged here is that the 

prosecutor improperly personally vouched for the credibility of the victim, 

K.C.

Although a prosecutor may comment on the 

credibility of the defendant or other witnesses, it is 

improper for a prosecutor to express a personal 

belief as to their credibility. Commonwealth v. 

Chmiel, 585 Pa. 547, 889 A.2d 501, 545 (2005). A 

prosecutor may make fair comment on the admitted 

evidence and may provide fair rebuttal to defense 

arguments. Commonwealth v. Spotz, 616 Pa. 

164, 47 A.3d 63, 97 (2012) (quoting 

Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 

244, 288 (2011) (additional citations omitted)). 

Even an otherwise improper comment may be 

appropriate if it is in fair response to defense 

counsel’s remarks. Id. Any challenge to a 

prosecutor’s comment must be evaluated in the 

context in which the comment was made. Id. The 

effect of the prosecutor’s remarks must be evaluated 

in the context and atmosphere of the entire trial. 

Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 

923, 932 (1999) (citing Commonwealth v. 

Stoltzfus, 462 Pa. 43, 337 A.2d 873, 882 (1975)).
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Moreover, not every unwise, intemperate, or 

improper remark made by a prosecutor mandates 

the grant of a new trial. Commonwealth v. Cox, 

603 Pa. 223, 983 A.2d 666, 687 (2009). “Reversible 

error occurs only when the unavoidable effect of the 

challenged comments would prejudice the jurors and 

form in their minds a fixed bias and hostility toward 

the defendant such that the jurors could not weigh 

the evidence and render a true verdict.” Id. To 

constitute a due process violation, the prosecutorial 

misconduct must be of sufficient significance to 

result in the denial of the defendant’s right to a fair 

trial. Id. at 685 (quoting Greer v. Miller, 483 U.S. 

756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)). 

The touchstone is the fairness of the trial, not the 

culpability of the prosecutor. Id.

Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013), cert. denied, 

Sanchez v. Pennsylvania, 135 S.Ct. 154 (2014).

Appellant objects to the following comment by the prosecutor to the 

jury:

I’m going to ask you to come back out and use your 

voices in a way that [K.C.] wasn’t able to. I’m going 

to ask you to come back when you render your 

verdict, tell [K.C.] you don’t have to write in your 

journal anymore about Mr. Sam. He’s not going to 

hurt you anymore. We believe you.

Notes of testimony, 9/18/13 at 169-170.

We find appellant’s argument to be specious. Frankly, the prosecutor’s 

statement in no way expresses her personal belief as to the veracity of K.C. 

We see no possible interpretation of the quoted language where it can be 

viewed as the prosecutor’s personal belief. Rather, the prosecutor is merely 

exhorting the jury to believe K.C. There is no error here whatsoever.
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Appellant next argues that his sentence is excessive. Such an issue 

goes to the discretionary aspects of appellant’s sentence.

Appellant challenges the discretionary aspects of 

sentencing for which there is no automatic right to 

appeal. This appeal is, therefore, more appropriately 

considered a petition for allowance of appeal. Two 

requirements must be met before a challenge to the 

judgment of sentence will be heard on the merits. 

First, the appellant must set forth in his [or her] brief 

a concise statement of matters relied upon for 

allowance of appeal with respect to the discretionary 

aspects of his [or her] sentence. Pa.R.A.P. 2119(f). 

Second, he or she must show that there is a 

substantial question that the sentence imposed is not 

appropriate under the Sentencing Code. 

42 Pa.C.S.A. § 9781(b)[.]

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa.Super. 2014), 

quoting Commonwealth v. Marts, 889 A.2d 608, 611-612 (Pa.Super. 

2005) (footnote and citations omitted).

Instantly, appellant’s brief does contain a concise statement of reasons 

for allowing an appeal of the discretionary aspects of his sentence. Therein 

appellant asserts that his sentence was manifestly excessive in that the 

court did not adequately consider his mitigating circumstances, and because 

the court did not give a contemporaneous written statement of its reasons 

for imposing the sentence.

We note that our cases have held that a substantial question is raised 

where an assertion is made that a sentence is excessive because it is in the 

aggravated range of the sentencing guidelines and the court failed to 

adequately consider mitigating circumstances. Commonwealth v. Moury, 
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992 A.2d 162, 171 (Pa.Super. 2010). Although appellant’s statement fails to 

link his aggravated range sentence with the failure to consider mitigating 

circumstances, we will give appellant the benefit of the doubt and find that a 

substantial question has been presented on this basis.

The trial court announced at sentencing that it had a pre-sentence 

report. (Notes of testimony, 1/17/14 at 4.) As such, the court is presumed 

to have considered mitigating factors:

Where pre-sentence reports exist, we shall continue 

to presume that the sentencing judge was aware of 

relevant information regarding the defendant’s 

character and weighed those considerations along 

with mitigating statutory factors. A pre-sentence 

report constitutes the record and speaks for itself. 

In order to dispel any lingering doubt as to our 

intention of engaging in an effort of legal purification, 

we state clearly that sentencers are under no 

compulsion to employ checklists or any extended or 

systematic definitions of their punishment procedure. 

Having been fully informed by the pre-sentence 

report, the sentencing court’s discretion should not 

be disturbed. This is particularly true, we repeat, in 

those circumstances where it can be demonstrated 

that the judge had any degree of awareness of the 

sentencing considerations, and there we will 

presume also that the weighing process took place in 

a meaningful fashion. It would be foolish, indeed, to 

take the position that if a court is in possession of 

the facts, it will fail to apply them to the case at 

hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Thus, there is no 

merit to appellant’s assertion that the court did not consider his mitigating 

circumstances in imposing an aggravated range sentence.
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Finally, as to the trial court’s alleged failure to provide a 

contemporaneous written statement of reasons for its sentence, this does 

not go to whether a substantial question exists, but rather to the viability of 

the sentence itself. This court has held that where a court imposes a 

sentence outside of the Sentencing Guidelines, it must provide a 

contemporaneous written statement of its reasons for the deviation. 

Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa.Super. 2014), 

appeal denied, 95 A.3d 275 (Pa. 2014). However, this court has also held 

that this requirement is satisfied when the court states its reasons for the 

sentence on the record and in the defendant’s presence. Id. We find that 

the court adequately stated the reasons for its sentence in the presence of 

appellant at sentencing:

THE COURT: All right. Thank you. 

Mr. Wallace, in this matter, I’ve already stated the 

guidelines, and let me review the following from the 

presentence report as well as the other documents, 

which are part of the sentencing record. Some of 

these are mitigating factors, some are aggravating 

factors.

First, there’s no doubt that the defendant has 

some prior history of employment as well as the 

family support. Those are both mitigating factors. 

There are potentially, other mitigating factors, 

mental health issues, drugs and alcohol treatment.

However, on the other hand, there are 

aggravating factors that would be in my view, the 

extensive impact that these crimes have had on the 

victim the prior efforts of rehabilitation that 

ultimately, were not successful ending in revocation 
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of probations that you previously went through the 

juvenile system. That was unsuccessful.

Due to the following, the convictions that he 

had as an adult -- and let me state for the record, 

I’m not considering as part of the sentence the prior 

arrest for rape, which was ultimately found to be not 

guilty by a jury of his peers.

And considering the protection of the public, 

the nature and gravity of this offense as it relates to 

the community and to the victim and rehabilitative 

needs of the defendant, considering the guidelines of 

the presentence report, the other documents which 

were admitted, counsel’s arguments, statements of 

support from the defendant’s family and statements 

of impact as it relates to the victim’s family, my 

observations of the defendant both during trial and 

the sentencing hearing, it is my intention to sentence 

the defendant . . .

Notes of testimony, 1/17/14 at 30-31.

Plainly, the trial court provided adequate reasons for appellant’s 

aggravated range sentence. We find no merit here.

Accordingly, having found no merit in the issues raised on appeal, we 

will affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2015