J-S29008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WESLEY TUCKER,

                            Appellant                    No. 882 WDA 2015


            Appeal from the Judgment of Sentence October 10, 2014
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0000449-2012


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                               FILED JUNE 1, 2016

        Appellant, Wesley Tucker, appeals from the judgment of sentence of

an aggregate term of 11½ - 34 years’ incarceration, following his conviction

for rape and related offenses.         After careful review, we vacate Appellant’s

aggregate sentence and remand for resentencing consistent with this

memorandum.

        The trial court summarized the facts adduced at trial as follows:

              The charges in this case arose from an incident that
        occurred on or about January 11, 2012, in Jeannette,
        Westmoreland County. The testimony at trial established that
        the victim, JS, was asleep at her residence on Margaret Street,
        Jeannette, Pennsylvania, at approximately 2:00 a.m. when she
        heard a knock at her bedroom window. JS ignored the knocking,
        but shortly thereafter, received a phone call on her cell phone
        from [Appellant], the husband of her close friend. [Appellant]
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     had arrived at JS’ residence after being involved in a physical
     altercation at his residence with a friend of his earlier that
     evening. [Appellant] lived approximately two blocks from JS’
     apartment. JS testified that she allowed him into the residence
     and smelled alcohol on him. JS’ young son, who was sleeping at
     the time [Appellant] arrived at the apartment, was also at the
     residence. After entering her apartment, JS testified that she
     and [Appellant] sat on the couch in the living room, talking. At
     some point, JS indicated that her back was itchy and [Appellant]
     scratched her back. JS testified that when [Appellant] tried to
     go under her shirt, she began to feel uncomfortable. She
     excused herself to her bedroom to check her cell phone to "get
     away from him for a couple of seconds." There, she saw that
     [Appellant]'s wife, Renita Smith, had texted her phone, asking if
     she had seen [Appellant]. JS testified that she called out into
     the living room saying his wife was looking for him. [Appellant]
     then approached the bedroom door and asked if he could use
     her cell phone because his had died. After using the cell phone,
     he put her phone in his pocket.

            JS testified that she was sitting on the edge of the bed
     when [Appellant] said to her that she was "going to experience
     what it's like to be raped" and began to choke her. JS testified
     she was terrified and lost control of her bladder. He stopped
     choking her and she collapsed on the floor. JS began sobbing
     and had trouble catching her breath. She stood up and walked
     the length of the bed and he met her at the end of the bed. JS
     testified that he began choking her again, when her young son
     woke up and was standing directly behind [Appellant] as he was
     choking her. [Appellant] stopped and told her son that "it was
     adult time and to go wait in the living room." JS went into the
     bathroom to get a drink of water because her throat was burning
     and [Appellant] followed her into the bathroom. [Appellant] told
     JS to take off all of her clothes. JS testified she "begged him to
     please don't do this." [Appellant] threatened if she "wanted to
     keep my son alive that I would take all my clothes off and go lay
     on the bed." She testified that she did as instructed "out of
     complete fear for my life and my son’s life.” She testified that
     [Appellant] then pulled his pants down, got on top of her, had
     sexual intercourse with JS and ultimately ejaculated inside of
     her. Thereafter, he pulled his pants up, tossed her phone on her
     bed and left the bedroom. She put on pajama pants and a t-
     shirt. She followed him "because I didn't want him alone in the
     same room as my son." [Appellant] told her[,] "Don't tell


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     anybody[,]" and she responded that she wouldn't and she would
     see him on Saturday for her birthday.          JS testified that
     photographs taken of her injuries, which were entered into
     evidence without objection, accurately depicted her injuries after
     the attack by [Appellant]. JS testified that she did not consent
     to the sexual intercourse with [Appellant].

            JS did not immediately tell anyone about the assault. JS
     testified that she had family members that lived next to her.
     She testified that [she] wanted to be as "normal as I could" for
     her young son who was to attend afternoon kindergarten that
     day. She testified that she made her son breakfast, gave him a
     shower and watched cartoons with him in the morning. JS did
     not call the police, nor did she tell [Appellant]'s wife, who had
     texted her again later that morning. JS testified that she did not
     call the police because [Appellant] and his wife lived so close to
     her residence "they would have known if there was a police car
     at my house."

           Thereafter, after taking her son to his afternoon
     kindergarten, JS went to see Angela Smail, the paternal
     grandmother of her son, who was working nearby in Jeannette
     at a bar. Angela Smail testified that JS had "choke marks on her
     neck" and that "all the little blood vessels in her face were
     broken" and "her eyes were like real red like they were bleeding
     almost." Ms. Srnaíl testified that JS told her that she had been
     attacked by [Appellant]. Concerned that she needed medical
     treatment, Ms. Smail took JS to Westmoreland Hospital.

            Officer Justin Scalzo of the Jeannette Police Department
     testified that he was dispatched on January 11, 2012 at
     approximately 5:00 p.m. to Westmoreland Hospital to respond to
     a reported sexual assault. Officer Scalzo testified that when he
     first met JS he noticed a "large amount of swelling and redness
     around her neck, redness underneath her eyes" and "her eyes
     were both full of blood." Officer Scalzo testified that he spoke
     with JS and she "explained to me […] that she had been raped
     by a person that was known to her. She explained to me the
     incident." JS identified [Appellant] as the person who assaulted
     her.      Katherine Anderson, a registered nurse at the
     Westmoreland Hospital emergency department and certified to
     give sexual assault examinations, testified that, on January 11,
     2012, she was working in the emergency room at Westmoreland
     Hospital when she was summoned to conduct a sexual assault
     examination of a sexual assault victim, JS.        Ms. Anderson

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     testified that, upon examination, JS had "facial injuries where
     her face from her neck up had the petechia." She testified that
     it was documented in the chart that she had a "red mark on her
     neck" and her eyes were "like a sclera hemorrhage had
     occurred." She also noted in her report that the "tongue is
     bitten on each side by the patient while being [shaken]." JS told
     Ms. Anderson that she had been choked in her apartment to the
     extent that she almost "passed out, she almost vomited. She
     urinated on her bedding." JS identified [Appellant] as "being the
     person that choked her. [Appellant] was the person who stated
     that she had to get undressed or he would hurt her family and
     her." Ms. Anderson noted in her report that there was "vaginal
     penetration only" and that he "ejaculated one time."             Ms.
     Anderson testified that "there was concern about the soft tissue,
     her neck, her throat. She was having difficulty swallowing so Dr.
     Pifferetti was one of the doctors that came in because it was just
     sore. It was a deep soreness." Dr. Thomas Pifferetti, an
     emergency room doctor at Westmoreland Hospital, testified that
     he was working in the Westmoreland Hospital's emergency room
     on January 11, 2012, when JS presented with "conjunctival
     hemorrhages of both of the whites of the eyes and what we refer
     to as petechia, small red spots that were found on the cheeks
     and on the face." Dr. Pifferetti also noted that she had a "little
     bit of abrasion and some swelling of the tongue on both sides.”
     Dr. Pifferetti testified that JS stated that "roughly about 12 hours
     earlier she had been sexually assaulted and physically assaulted
     in the sense that she had been choked as part of sexual assault."
     Dr. Pifferetti opined that the injuries he observed on JS were
     consistent with what JS told him had happened to her earlier
     that evening, and that the injuries were consistent with being
     choked.

           After speaking with JS at Westmoreland Hospital, Officer
     Scalzo went to [Appellant]'s place of employment to perform an
     arrest, but learned he had left earlier that day. Officer Scalzo
     went to [Appellant]'s residence with six or seven other police
     units. The officers believed that [Appellant] was at home, as his
     vehicle was parked in front of his house. Officers knocked at the
     door, made verbal commands and had 911 operators call his cell
     phone number to try to get him to come out of the house for
     approximately 25 minutes. [Appellant] did not come out of his
     residence, but eventually came to the police station at
     approximately 10:30 p.m.        Officer Scalzo testified that he
     conducted an interview with [Appellant] after he signed a waiver


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     of rights form. Officer Scalzo testified that he asked [Appellant]
     a series of questions regarding JS. Officer Scalzo asked whether
     he had seen JS earlier that morning and [Appellant] answered,
     "No." When asked whether [Appellant] was at JS' apartment
     earlier that morning, [Appellant] answered, "No." When asked
     when the last time that he was at her apartment or spoke to her,
     [Appellant] replied that he "did not remember." However, after
     [Appellant] learned that he was being implicated by the victim in
     a rape, he began to answer as if answering a hypothetical
     question, by indicating that if I did talk to JS, I don't remember
     and if I was at her house, I don't remember. Ultimately, Officer
     Scalzo indicated to [Appellant] that there was DNA evidence
     collected and [Appellant] answered by stating that he did not
     have sex with her, but if he did, it would be consensual.

            Detective Raymond Dupilka of the Westmoreland County
     District Attorney's Office testified that he took photographs of
     injuries sustained by JS, took photographs of JS' residence and
     gathered evidence from her residence including bath towels and
     a washcloth and a pair of pajama bottoms. Sabine Panzer-
     Kaelin, a Forensic DNA Scientist 2 at the Pennsylvania State
     Police DNA Laboratory, was qualified, without objection, as an
     expert in DNA profiling, and testified regarding the DNA testing
     she performed in this case. She testified that she had four
     vaginal swabs from JS, a buccal swab from [Appellant], a buccal
     swab from JS, as well as a cutting from the crotch area of
     pajama pants. After reviewing the results, Ms. Panzer-Kaelin
     testified that the chance of the DNA from the vaginal swabs
     belonging to someone else other than [Appellant] was
     "approximately 1 in 1.4 quintillion from the Caucasian
     population, approximately 1 in 4.8 quintillion from the African
     American population and approximately 1 in 1.7 quintillion from
     Hispanic population."

            In contrast to the Commonwealth's evidence, [Appellant]
     testified that he and the victim had consensual sexual
     intercourse and that he never threatened or assaulted her.
     [Appellant] testified that on the evening in question, he had
     been drinking with some of his friends, celebrating a friend's
     promotion at work. [Appellant] testified that "we all hung out
     doing a lot of drinking." Ultimately, he got into an altercation
     with a friend of his, Mike Thomas, over Mr. Thomas' girlfriend's
     shoes.     The confrontation became physical and [Appellant]
     testified that he walked away to "cool off" and ended up at JS'
     house, walking around, around 2:15 a.m. [Appellant] testified

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     that he didn't "want to keep walking around at 2:00 a.m. while
     drunk." According to [Appellant]'s testimony, he knocked at JS's
     door, then knocked on her window and then called or texted her.
     Upon entering the apartment, [Appellant] testified that he went
     into JS' living room, where they sat on the couch, talking about
     the altercation. [Appellant] testified that JS stated that it was
     "cool" that he punched Mike because she "personally didn't like
     the guy" and JS was "kind of excited that actually we had gotten
     into an altercation." [Appellant] testified that JS asked him to
     scratch her back, lifting her shirt, indicating that she was itchy
     due to psoriasis. [Appellant] testified that she began showing
     him the areas of her body affected by the psoriasis, including her
     back, breasts and legs. [Appellant] testified that, thereafter, JS
     went into her bedroom and called him into the bedroom, telling
     [Appellant] that his wife had texted her and asked him if "he
     would rather stay." [Appellant] testified that JS already had her
     shirt off and then removed what he characterized as
     "cheerleader shorts" and she got into the bed and "they ended
     up having intercourse," [Appellant] testified that he never had
     his hands around her throat, never threatened JS and she never
     told him to stop. [Appellant] also indicated that her son was in
     the bedroom, but when he entered the bedroom, "she sent him
     out." [Appellant] testified that he never observed hemorrhaging
     in the eyes or broken blood vessels in JS' face. [Appellant] also
     testified that JS did not urinate on the bed and he did not see
     any indication of urination. [Appellant] testified that JS told him
     during intercourse that she was on birth control, known as
     Mirena, and that it was "okay to ejaculate in her." [Appellant]
     acknowledged that he and JS had sexual intercourse.
     [Appellant] testified that he did not initially admit to having
     sexual intercourse with JS because he "just had been unfaithful
     to his wife."

           However, on cross examination, [Appellant] admitted that
     when originally questioned by the police, he had denied that he
     had seen or had spoken to JS on January 11, 2012 and testified
     that he had lied to the police.

                                     …

           Renita Smith, [Appellant]'s wife, also testified on
     [Appellant]'s behalf. Ms. Smith testified that in January of 2012,
     she and JS had known each other for approximately 10 years
     and were "best friends." She testified that she and JS would talk
     or text each other daily. She testified that JS lived in "like a

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       duplex" and that she resided there with "her mother, her
       grandmother, her uncle, her sister, her brother-in-law and her
       nieces and nephews along with her son." Ms. Smith indicated
       that on January 10, 2012, her husband had some of his co-
       workers over and "they were having drinks and hanging out."
       Ms. Smith indicated that she went to bed "about ten." Ms. Smith
       testified that she woke up to her husband having an altercation
       with his friend, Mike, and after the altercation, [Appellant] left
       the residence. Ms. Smith testified that she began to get worried
       about her husband's whereabouts, so she texted JS that night.
       Ms. Smith testified that JS did not respond. Ms. Smith indicated
       that she and JS texted repeatedly the next day and JS never told
       her [Appellant] had been at her house. Ms. Smith also indicated
       that she accompanied her husband to the police station later
       that evening, that she was instructed by Officer Scalzo to stay in
       her car until he was finished talking to [Appellant] and that she
       did as instructed.

Trial Court Opinion (responding to Appellant’s post-sentence motions),

7/27/2015, at 1-10.

       Appellant was charged by criminal information with rape, aggravated

assault, terroristic threats, indecent assault, unlawful restraint, and simple

assault.1    Following a jury trial held on July 7-9, 2014, Appellant was

acquitted of aggravated assault, but convicted of all the remaining,

aforementioned offenses.         On October 10, 2014, the trial court sentenced

Appellant to consecutive sentences of 10-20 years’ incarceration for rape, 4-

60 months’ incarceration for terroristic threats, 6-24 months’ incarceration

for indecent assault, 4-60 months’ incarceration for unlawful restraint, and



____________________________________________


1
   18 Pa.C.S. §§ 3121(a)(1), 2701(a)(1),              2706(a)(1),   3126(a)(1),
2902(a)(1), and 2701(a)(1), respectively.



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4-24 months’ incarceration for simple assault.              Thus, Appellant was

sentenced to an aggregate term of 11½-34 years’ incarceration.

       Appellant filed timely, post-sentence motions, and was granted leave

to   file   supplemental/amended          post-sentence   motions.2   Ultimately,

Appellant’s post-sentence motions were denied on April 30, 2015. Appellant

thereafter filed a timely notice of appeal.        Appellant then filed a timely,

court-ordered Pa.R.A.P. 1925(b) statement on June 26, 2015. On July 27,

2015, the trial court issued a Rule 1925(a) statement, addressing new issues

raised for the first time in Appellant’s Rule 1925(b) statement, and

incorporating its opinion addressing Appellant’s post-sentence motions for

the remaining claims.         See Rule 1925(a) Opinion (hereinafter, “1925(a)

Opinion”), 7/27/15, 1-6.

       Appellant now presents the following questions for our review:

            1. Did the trial court err by not applying the merger doctrine
               to [Appellant]’s sentence since the count of [i]ndecent
               [a]ssault was a lesser-included offense of the count of
               [r]ape?

            2. Should [Appellant] be resentenced since the [s]entencing
               [c]ourt was exposed to prejudicial information regarding
               separate and unrelated charges of criminal activity that
               have been file against [him]?

            3. Is [Appellant]’s sentence manifestly unreasonable and
               excessive?

Appellant’s Brief, at 4.
____________________________________________


2
   Appellant changed counsel twice during the post-sentence phase of the
trial court’s proceedings.



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      Appellant’s first claim concerns whether his sentences for rape and

indecent assault should have merged. “[M]erger is a nonwaivable challenge

to the legality of the sentence. The issue is a pure question of law, allowing

for plenary review.” Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa.

Super. 2007) (citation omitted).

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S. § 9765.

      Appellant argues that his rape and indecent assault sentences merge

for sentencing purposes, citing Commonwealth v. Lomax, 8 A.3d 1264

(Pa. Super. 2010).    In that case, this Court found that all the statutory

elements of indecent assault are included in the statutory elements of rape,

and that both offenses in that case had arisen from the same criminal act,

the touching of the victim’s genitals.    Therefore, we held that Lomax’s

convictions for rape and indecent assault merged for sentencing purposes.

Id. at 1268.

      The trial court addressed Appellant’s merger claim as follows:

            A careful review of the testimony at trial in this instant
      case reveals only a single physical act, the forcible intercourse.
      Thus, the court is constrained to agree that merger is
      appropriate in the circumstances of this case, and the sentence
      should be corrected accordingly.
                                     …



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      As such, the court believes the sentence should be vacated and
      the matter remanded for resentencing by this court.

1925(a) Opinion, at 5-6.

      The Commonwealth, however, contends that the indecent assault

charged in this case occurred “prior to the rape when [Appellant] attempted

to put his hand under the victim’s shirt. Subsequently, after some period of

time passed, [Appellant] forcibly raped the victim.” Commonwealth’s Brief,

at 7. To support this assertion, the Commonwealth cites pages 41-42 of the

trial transcripts. However, there are two trial transcripts in this case (A and

B), and both contain those page numbers.        Nevertheless, after reviewing

those pages in both transcripts, we did not discover any mention of the

“touching” that allegedly formed the basis of the separate indecent assault

charge.     See N.T.(A), 7/7/14 - 7/9/14, at 41-42 (direct examination

testimony of J.S.); N.T.(B), 7/7/14 - 7/9/14, at 41-42 (cross-examination

testimony of J.S.).

      On page 40 of the trial transcript “A,” J.S. does testify that she allowed

Appellant to scratch her back until she “felt uncomfortable whenever he tried

to go under my shirt.”      N.T.(A), at 40.     However, there are multiple

problems with ascribing this action as the basis of the indecent assault.

First, J.S. was describing how consensual contact ended.          Second, the

language used by J.S. indicates that whatever contact was intended had not

occurred.   Third, J.S. did not indicate what part of her body was touched

without her consent.



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     Most importantly, however, no mention of this act was contained in

the Affidavit of Probable Cause or the Criminal Complaint.       See Criminal

Complaint, 1/12/12, at 1-13; Affidavit of Probable Cause, 1/12/12, at 1-3.

Indeed, in the Criminal Complaint, the indecent assault offense was

described as such:

     In that, on or about said date 1-11-2012 the defendant, Wesley
     Tucker, did have indecent contact with the victim or cause[d] the
     victim, namely, [J.S.,] to have indecent contact with him or her
     when the defendant did so by forcible compulsion, that is to say
     the defendant did by forcible compulsion force the victim to have
     vaginal [intercourse].

Criminal Complaint, at 4.

     Less   informative     is   the   Criminal   Information.   The   Criminal

Information’s description of the indecent assault charge is boilerplate

language which does not describe the conduct that formed the basis of the

offense. See Criminal Information, 2/24/12, at 1 (“The Actor had indecent

contact with the complainant, [J.S.], or caused the complainant to have

indecent contact with the Actor, without the complainant’s consent.”).

     After careful review, we conclude that the record supports the trial

court’s determination that Appellant’s rape and indecent assault convictions

were based on the same criminal act: the forcible intercourse that occurred.

Moreover, in such circumstances, rape and indecent assault merge for




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sentencing purposes.          Lomax, supra.        Thus, we vacate Appellant’s

aggregate sentence and remand for resentencing.3

       Because of our disposition with regard to Appellant’s merger claim, we

decline to address his third claim (asserting the manifest unreasonableness

and excessiveness of his sentence), as that claim is rendered moot by our

decision vacating his aggregate sentence.

       Appellant’s second claim concerns the trial court’s consideration, at

sentencing, of an unresolved sexual assault case against Appellant, which

Appellant believes called into question the impartiality of the trial court. To

the extent that Appellant challenges the discretionary aspects of his

sentence when he asserts that the trial court considered an improper factor

at sentencing, that issue is also rendered moot by our decision today. To

the extent that Appellant asserts that the trial court should have recused

itself at sentencing, or to the extent he requests that we create a rule that,

“in situations where a defendant is facing multiple unrelated cases, the risk

of prejudice is so great that the trial and/or sentencing should be handled by

a jurist who is not aware of the pending unrelated counts[,]” we deem this
____________________________________________


3
  “If our disposition upsets the overall sentencing scheme of the trial court,
we must remand so that the court can restructure its sentence plan.”
Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006). Here,
Appellant was sentenced to consecutive sentences at each count.
Accordingly, we conclude that, by vacating Appellant’s sentence for indecent
assault, we have substantially changed the total time in jail which the trial
court imposed; thus, this Court has upset the sentencing scheme of the trial
court.



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claim waived for purposes of the instant appeal.       Appellant’s Brief, at 13.

Appellant does not direct our attention to where in the record he preserved

this claim, or otherwise requested recusal on this basis, and “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.” Pa.R.A.P. 302(a). As the trial court notes:

      [I]f [Appellant] believed that the trial court was biased when it
      imposed its sentence, the proper practice is to address an
      application    for   recusal    by    petition   to   the    judge.
      Commonwealth v. Whitmore, 590 Pa. 376, 386, 912 A.2d
      827, 834 (2006).        [Appellant] failed to do so.       Further,
      [Appellant] did not raise this issue at the time of sentencing, did
      not raise it in written post-sentence motions or amend post[-]
      sentence motions before the trial court, nor was it raised orally
      at the time of the post[-]sentence motions hearing on April 17,
      2015. Accordingly, the issue is waived. Rule 302(a), supra.

1925(a) Opinion, at 4.

      We agree. Thus, as to the issue of recusal, or the request for a new

recusal rule for trial court judges who are ostensibly tainted by their

knowledge of unrelated pending cases, we deem Appellant has waived any

such claim by failing to preserve it below.

      Judgment of sentence vacated.           Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: June 1, 2016


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