Wesling v. Tice

• Court: U.S. District Court — Middle District of Pennsylvania
• Writing for the Court: MEHALCHICK, M.J.
• Decision Date: 17 August 2020
• Docket Number: CIVIL ACTION NO. 3:18-CV-02405
• Citation: Wesling v. Tice, CIVIL ACTION NO. 3:18-CV-02405 (M.D. Pa. Aug 17, 2020)
• Parties: DANIEL WESLING, Petitioner, v. WARDEN ERIC TICE, et al., Respondents.

DANIEL WESLING, Petitioner, v. WARDEN ERIC TICE, et al., Respondents.

CIVIL ACTION NO. 3:18-CV-02405

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

August 17, 2020

(JONES, J.)

(MEHALCHICK, M.J.)

MEMORANDUM

In November 2018, Daniel Wesling filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Western District of Pennsylvania. (Doc. 1-3; Doc. 2). Contemporaneously therewith, Wesling filed a motion for a stay and abeyance of his petition to permit him to exhaust some claims in petition he filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and he also filed a motion for leave to proceed in forma pauperis. (Doc. 1-4; Doc. 3; Doc. 1). The Western District transferred the petition to the Middle District and deferred Wesling's stay application for this Court's resolution. (Doc. 4; Doc. 5; Doc. 6; Doc. 4, at 5 n.3). The undersigned provided Wesling with an opportunity to withdraw the petition to file an all-inclusive petition, and Wesling elected to proceed on the petition as filed. (Doc. 7; Doc. 8; Doc. 9).¹ On May 21, 2020, Wesling responded to the show-cause order. (Doc. 14; see Doc. 11; Doc. 12).

For the reasons that follow, the Court will grant Wesling's motion for a stay (Doc. 3) on condition that he inform the Court within 30 days of the disposition of his second PCRA petition,² which is now pending on appeal. Additionally, Wesling's motion for an in forma pauperis (Doc. 1; Doc. 1-1) will be granted.

I. BACKGROUND AND PROCEDURAL HISTORY

In June 2009, the Commonwealth filed an information charging Wesling with several counts of sexual offenses committed against two sisters, who were born in 1981 and 1984, between January 1, 1990, and December 31, 2001 (later amended to reflect a November 5, 2000 end date). Com. v. Wesling, No. 1386 EDA 2014, 2015 WL 6956554, at *1-2 (Pa. Super. Ct. June 30, 2015). In October 2013, a Monroe County jury convicted Wesling of rape, attempted rape, aggravated indecent assault, sexual assault, statutory sexual assault, indecent assault, and unlawful contact with a minor. Wesling, 2015 WL 6956554, at *1; see Commonwealth v. Wesling, Docket No. CP-43-CR-0001697-2012 (Monroe County C.C.P.).³ The victims' trial testimony indicated that Wesling had perpetrated a "protracted course of sexual assaults . . . over the span of a decade in both Pennsylvania and New Jersey." Wesling, 2015 WL 6956554, at *1. The trial court sentenced him, in March 2014, to an aggregate term of from 15 to 30 years' incarceration. Wesling, 2015 WL 6956554, at *1.

Wesling challenged his March 2014 judgment of sentence on direct appeal and collaterally by way of PCRA petitions and appeals therefrom.

A. DIRECT APPEAL

In his counseled direct appeal, Wesling challenged his conviction on three grounds:

[1]. Was there not insufficient evidence that any of the acts which formed the basis of the charges for which Mr. Wesling was convicted occurred in Pennsylvania and thus was not the evidence insufficient to find Mr. Wesling guilty of any charges?

[2]. Was not the evidence insufficient to prove beyond a reasonable doubt that Mr. Wesling committed rape or attempt[ed] rape of K.B., in that there was no evidence of penile penetration or an attempt to penetrate?

[3]. Should not the sentences on Counts 1 and 5 have merged?

Wesling, 2015 WL 6956554, at *1; (Doc. 2, at 2).⁴

Denying the appeal and affirming judgment of sentence, the Superior Court of Pennsylvania held that the trial judge's opinion "ably and comprehensively dispose[d] of Wesling's issues raised on appeal, with appropriate reference to the record and without legal error . . . ." Wesling, 2015 WL 6956554, at *1. Incorporated into the Superior Court's June 2015 Memorandum denying the appeal was the trial judge's Statement Pursuant to Pa.R.A.P. 1925(a).⁵ The Rule 1925(a) Statement provides background and procedural history relevant to the instant petition, including the following:

In 2009, Pocono Mountain Regional Police were contacted by investigators in Broward County, Florida, with information that Appellant may have sexually assaulted the victims in the above captioned case, sisters K.B. and P.U., over a period of time spanning about a decade when the two women were minors. Police interviews were conducted, resulting in the Commonwealth filing a criminal complaint on June 29, 2009, charging Appellant with seventy[-]two (72) various sex offenses.

At the time of the filing of the criminal complaint, Appellant was incarcerated in Florida, pending trial on other sexual assault charges. A detainer was lodged against Appellant on July 1, 2009, and after the resolution of Appellant's case in Florida, Appellant was extradited to Pennsylvania where he posted bond on July 26, 2012.

Also on July 26, 2012, Appellant waived his preliminary hearing under the counsel of Ms. Robin A. Spishock, Esq. of the Monroe County Public Defender Office. Appellant waived formal arraignment on September 24, 2012. On October 5, 2012, a Criminal Information was filed against Appellant charging him with twenty-nine (29) various sex offenses.

On February 27, 2013, Mr. George H. Newman, Esq. entered his appearance on behalf of Appellant. On March 13, 2013, Mr. Jack Fuchs, Esq., and Mr. Michael Salnick, Esq., were both granted pro hac vice admission for the purpose of representing Appellant.

On April 9, 2013, Appellant filed numerous Motions to Dismiss and a Motion for a Bill of Particulars. That same day, the Commonwealth filed its Notice pursuant to Pennsylvania Rule of Evidence 404(b) of its intent to introduce prior bad acts including the allegations of sexual assault in the State of Florida. On April 18, 2013, Appellant filed a Motion to Preclude the Commonwealth from introducing such 404(b) evidence. On May 14, 2013, the Commonwealth filed a Supplemental Notice of Prior Bad Acts indicating its intent to introduce evidence that Appellant sexually abused K.B. and P.U. in the Stale of New Jersey.

A hearing on Appellant's Pre-Trial Motions was held on May 14, 2013. Following the hearing, and in consideration of subsequently submitted briefs, this Court issued an Opinion and Order dated July 19, 2013 denying Appellant's Motions, which we incorporate here.

On September 19, 2013, Appellant filed several Motions in Limine. On September 20, 2013, the Commonwealth also filed several Motions in Limine. By three separate Orders dated October 2, 2013. Appellant's Motions in Limine were denied.

Wesling, 2015 WL 6956554, at *2 (footnotes omitted).

Regarding his first ground for appeal, the trial court found that "the trial testimony of victims K.B. and P.U. were replete with statements that they were sexually abused by Appellant in this Commonwealth, and specifically, in Monroe County." Wesling, 2015 WL 6956554, at *3. The court noted that "one of the primary backdrops to this unfortunate story is the house where the victims grew up, 1120 Deer Trail Road, located in Pocono Pines, Monroe County, Pennsylvania, 1835"; "Appellant was a frequent guest at the Deer Trail Road house, spending nights in Dorothy's room"; "K.B. testified to a rather vivid memory of an incident which occurred at the Deer Trail Road house"; "P.U. testified to incidents with Appellant at her parent's house on Deer Trail Road"; and "another locus of the abuse testified to at trial was a house that Appellant bought in the late 1990s, located approximately one mile from the Deer Trail Road house." Wesling, 2015 WL 6956554, at *4-5. Thus, the trial court found that "ample testimonial evidence was adduced at trial establishing that the acts which formed the basis of the charges for which Appellant was convicted did in fact occur in this Commonwealth and we disagree with Appellant's vacuous claim to the contrary." Wesling, 2015 WL 6956554, at *5.

The trial court then rejected Wesling's second ground for appeal, i.e., insufficiency of evidence as to Counts One (rape by forcible compulsion) and Five (attempted rape by forcible compulsion) of the criminal information. Regarding Count One,⁶ the court cited K.B.'s testimony, inter alia, that Wesling would have K.B. sit on his lap and his penis would be "in the area of her vagina or anus," noted that K.B. had reported to a detective that "probably just the tip would have gone inside my vagina just a little bit," and found, in the alternative, that there was sufficient evidence to convict on Count One based on testimony of oral intercourse. Wesling, 2015 WL 6956554, at *6-7 (citing testimony including, "I remember him kissing me like on my vagina, and I remember like this uncomfortable pressure. I just remember feeling like all of his uncomfortable pressure . . . ."). The trial court continued, "Admittedly, Appellant's parents' house, where the described oral sex took place, is located in New Jersey. After she finished recounting her memory of this event, however, the Commonwealth asked her how many times similar incidents took place. To this, K.B. responded that '[i]t happened more than one time, but I couldn't give you a number.'" Wesling, 2015 WL 6956554, at *7 (brackets in original). Given K.B.'s testimony and that the large majority of events occurred in Monroe County, the trial court concluded that jurors could draw the reasonable inference that incidents of oral sex may have also occurred in Pennsylvania. Wesling, 2015 WL 6956554, at *7. The same testimony, along with K.B.'s testimony about other occasions where, for example, Wesling pushed her up against the wall and pulled down her underwear, led the court to concluded that there was sufficient evidence in support of the jury's conviction on Count Five (attempted rape). Wesling, 2015 WL 6956554, at *8.

Finally, the trial court found no basis for Wesling's third appeal ground concerning his contention that Amended Count One, Count Five, and Count Fifteen (contact or communication with a minor, sexual offense) should have merged. The trial...