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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 111⁄2 - 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 tshirt. 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 PanzerKaelin, 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 coworkers 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 111⁄2-34 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