Com. v. Wanamaker, L. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAMARR WANAMAKER,
Appellant No. 819 EDA 2016
Appeal from the Judgment of Sentence of January 25, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010007-2011
BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 07, 2017
Appellant, Lamarr Wanamaker, appeals from the judgment of sentence
entered on January 25, 2013. We affirm in part and vacate in part.
This Court previously set forth the factual background of this case as
follows:
On September [11,] 2010, a group of men, including Neville
Franks and Shakiel Taylor, were walking to a park at B and
Rockland Streets in North Philadelphia. The group was a few
blocks away from the park, on Ruscomb Street when Appellant
and Jerek Anderson approached the group. Appellant asked,
“where the money at? where the drugs at? I heard you all be out
there selling.” Taylor responded saying that he did not have any
money or drugs. Appellant then took out a revolver and
searched Taylor’s pockets. Appellant threw the things in Taylor’s
pockets on the ground.
Appellant demanded to search Franks. Franks refused.
Appellant then shot Franks twice. Franks died.
* Retired Senior Judge assigned to the Superior Court
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Commonwealth v. Wanamaker, 91 A.3d 1295, 2013 WL 11249181, *1
(Pa. Super. 2013) (unpublished memorandum) (internal alterations, ellipses,
and honorifics omitted).
On September 12, 2011, the Commonwealth charged Appellant via
criminal information with second-degree murder,1 two counts of robbery,2
simple assault,3 carrying a firearm without a license,4 carrying a firearm on
the streets of Philadelphia,5 and possessing an instrument of crime.6 On
January 25, 2013, Appellant was convicted of second-degree murder, two
counts of robbery, carrying a firearm without a license, and possessing an
instrument of crime. He was immediately sentenced to life imprisonment
without the possibility of parole for Franks’ murder. He was also sentenced
to 10 to 20 years’ imprisonment each for robbing Franks and Taylor, three to
six years’ imprisonment for carrying a firearm without a license, and one to
two years’ imprisonment for possessing an instrument of crime. The trial
court ordered those four sentences to run concurrently with Appellant’s life
sentence.
1
18 Pa.C.S.A. § 2502(b).
2
18 Pa.C.S.A. § 3701(a)(1)(i).
3
18 Pa.C.S.A. § 2701(a).
4
18 Pa.C.S.A. § 6106(a)(1).
5
18 Pa.C.S.A. § 6108.
6
18 Pa.C.S.A. § 907(a).
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This Court affirmed Appellant’s judgment of sentence because he
waived the only issue raised on direct appeal. See generally id. Appellant
did not seek allowance of appeal from our Supreme Court. On November
24, 2014, Appellant filed a petition pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In that petition, Appellant alleged
that his direct appellate counsel provided ineffective assistance by waiving
the only issue raised during Appellant’s direct appeal. Therefore, he sought
reinstatement of his direct appellate rights nunc pro tunc. Cf.
Commonwealth v. Pulanco, 954 A.2d 639, 642 (Pa. Super. 2008) (citation
omitted) (when counsel waives all issues on direct appeal a petitioner is
entitled to reinstatement of his direct appellate rights nunc pro tunc). On
February 11, 2016, the PCRA court granted Appellant’s petition and
reinstated his direct appellate rights nunc pro tunc. This reinstated direct
appeal followed.
Appellant presents one issue for our review:
Did the [trial] court impose an illegal sentence on one of
Appellant’s robbery convictions because that conviction merged
with [his] second[-]degree murder conviction for purposes of
sentenc[ing]?
Appellant’s Brief at 3 (complete capitalization omitted). 7
7
Appellant did not preserve his lone issue in his concise statement of errors
complained of on appeal; however, issues relating to the legality of a
sentence cannot be waived. See Commonwealth v. Wolfe, 140 A.3d 651,
655 (Pa. 2016) (citations omitted). Moreover, because this is an appeal
from a judgment of sentence instead of an appeal from the grant or denial of
PCRA relief, this Court’s decision in Commonwealth v. Ousley, 21 A.3d
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In his lone issue, Appellant argues that his conviction for robbing
Franks should have merged with his second-degree murder conviction for
purposes of sentencing. “A claim that convictions merge for sentencing is a
question of law; therefore, our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Kimmel, 125 A.3d 1272, 1275
(Pa. Super. 2015) (en banc), appeal denied, 136 A.3d 980 (Pa. 2016)
(citation omitted).
Merger in Pennsylvania is governed by section 9765 of the Sentencing
Code. Section 9765 provides:
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.A. § 9765. “Accordingly, merger is appropriate only when two
distinct criteria are satisfied: (1) the crimes arise from a single criminal act;
and (2) all of the statutory elements of one of the offenses are included
within the statutory elements of the other.” Commonwealth v. Raven, 97
A.3d 1244, 1249 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014)
(citation omitted).
The law in this Commonwealth has long been that the predicate felony
merges with a second-degree murder conviction for purposes of sentencing.
1238 (Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011), is
inapposite.
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E.g., Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014);
Commonwealth v. Adams, 39 A.3d 310, 325 (Pa. Super. 2012), aff’d, 104
A.3d 511 (Pa. 2014); Commonwealth v. Gillespie, 516 A.2d 1180, 1182
(Pa. 1986); Commonwealth v. Garnett, 485 A.2d 821, 829 (Pa. Super.
1984) Commonwealth v. Fortune, 451 A.2d 729, 731 (Pa. Super. 1982);
Commonwealth v. Tarver, 426 A.2d 569, 570 (Pa. 1981).8 In other
words, a predicate felony and second-degree murder ipso facto (1) arise
from a single criminal act, and (2) all of the elements of the predicate felony
are included within the elements of second-degree murder. See Adams, 39
A.3d at 325. In this case, the predicate felony for Appellant’s second-degree
murder conviction was Franks’ robbery. See Criminal Information, 9/12/11,
at 1. Thus, the two convictions merge for sentencing purposes.
The Commonwealth relies on Commonwealth v. Weatherill, 24 A.3d
435 (Pa. Super. 2011), appeal denied, 63 A.3d 777 (Pa. 2013), in support of
its argument that Appellant was charged with separate criminal acts. In
Weatherill, this Court held that a conviction for kidnapping did not merge
with a conviction for second-degree murder. Id. at 437 n.1. The
Commonwealth’s reliance on Weatherill is misplaced; however, because the
predicate felony in Weatherill was kidnapping – not robbery. See
Weatherill, 24 A.3d at 437 n.1. Thus, the convictions for kidnapping and
8
We acknowledge that cases decided before enactment of section 9765 are
not binding. We cite these cases merely to show that courts in this
Commonwealth have held that the predicate felony merges with a second-
degree murder conviction both before and after enactment of section 9765.
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second-degree murder did not merge for purposes of sentencing. See id.As such, Weatherill is not instructive with regard to the merger of second-
degree murder with the predicate felony of robbery.
In sum, we conclude that Appellant’s sentence for robbing Franks
(count four of the criminal information) was illegal. We vacate that portion
of Appellant’s judgment of sentence and affirm the remainder of Appellant’s
judgment of sentence. As vacatur of Appellant’s judgment of sentence with
respect to count four does not disrupt the trial court’s overall sentencing
scheme, we decline to remand for re-sentencing.
Judgment of sentence with respect to count four vacated. Judgment
of sentence affirmed in all other respects. Jurisdiction relinquished.
Judge Ransom joins this memorandum.
Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2017
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