Com. v. Alexander, T. ( 2019 )

J-S74026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TYRONE S. ALEXANDER
Appellant No. 1190 EDA 2017
Appeal from the Judgment of Sentence imposed November 22, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0014428-2013
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 11, 2019
Appellant, Tyrone S. Alexander, appeals from the judgment of sentence
the Court of Common Pleas of Philadelphia County imposed on November 22,
2016. Appellant argues that the sentencing court should have merged his
predicate robbery conviction with his second-degree conviction for sentencing
purposes. We agree. Accordingly, we vacate the sentence with respect to
robbery and affirm in all other respects.
The factual and procedural background are not at issue here. Briefly,
on July 13, 2013, at approximately 7:00 a.m., “Mr. Michael Wisman was in
the area of the 2000 block of Simpson Street[, in Philadelphia,] when he was
robbed by [A]ppellant who took his wallet and then fled after fatally shooting
Mr. Wisman several times.” Appellant’s Brief at 5.
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On November 22, 2016, a jury found Appellant guilty of murder of the
second degree, robbery, carrying a firearm with an obliterated serial number,
carrying a firearm without a license, firearms on public property or public
streets in Philadelphia, and possessing an instrument of crime. The trial court
sentenced Appellant to life imprisonment for murder of the second degree,
and 10-20 years’ incarceration on the robbery conviction to run concurrently
with his life sentence. Additionally, the trial court imposed the following terms
of incarceration: 5 to 10 years for possession of a firearm with an obliterated
serial number; 3½ to 7 years for carrying a firearm without a license; 2½ to
5 years for carrying a firearm on public property or public streets in
Philadelphia; and 2½ to 5 years for possessing an instrument of crime, all to
run consecutively to each other and to the robbery sentence – an aggregate
of 23½ to 47 years of incarceration to run concurrently with Appellant’s life
sentence.
Appellant filed a post-sentence motion, challenging the weight and the
sufficiency of the evidence, which was denied by operation of law on April 6,
2017. This appeal followed.
As noted, Appellant argues, and the Commonwealth and the trial court
agree, that the robbery conviction should have been merged with the second-
degree murder conviction for sentencing purposes. Failure to do so resulted
in an illegal sentence. We agree.
“Whether Appellant’s convictions merge for sentencing is a question
implicating the legality of Appellant's sentence. Consequently, our standard
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of review is de novo and the scope of our review is plenary. See
Commonwealth v. Collins, 764 A.2d 1056, 1057, 1057 n.1 (Pa. 2001).
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.
The statute’s mandate is clear. It prohibits merger unless two distinct
facts are present: 1) the crimes arise from a single criminal act; and 2) all of
the statutory elements of one of the offenses are included in the statutory
elements of the other.
A criminal homicide constitutes second-degree murder, or “felony
murder,” if “it is committed while defendant was engaged as a principal or an
accomplice in the perpetration of a felony.” 18 Pa.C.S.A. § 2502(b).
Enumerated felonies include robbery, rape, deviate sexual intercourse by force
or threat of force, arson, burglary, and kidnapping. 18 Pa.C.S.A. § 2502(d).
It is well-established that the predicate felony merges with a second-
degree murder conviction for purposes of sentencing. See, 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). In other words, a predicate felony and second-degree
murder ipso facto (1) arise from a single criminal act, and (2) all of the
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elements of the predicate felony are included within the elements of second-
degree murder. See, e.g., Adams, 39 A.3d at 325.
In this case, the predicate felony for Appellant’s second-degree murder
conviction was robbery. See 18 Pa.C.S.A. § 2502(d); Commonwealth v.
Tarver, 426 A.2d 569, 570 (Pa. 1981);1 Criminal Information, 12/10/13, at
1; Trial Court Opinion, 1/16/18, at 14. Thus, the two convictions merge for
sentencing purposes.
Accordingly, we are constrained to vacate the judgment of sentence
pertaining to Appellant’s robbery conviction, and affirm the remainder of
Appellant’s judgment of sentence. As vacatur of Appellant’s judgment of
sentence with respect to the robbery count does not disrupt the trial court’s
overall sentencing scheme, we decline to remand for resentencing. See
Commonwealth v. Henderson, 938 A.2d 1063, 1067–68 (Pa. Super. 2007).
Judgment of sentence with respect to robbery vacated. Judgment of
sentence affirmed in all other respects. Jurisdiction relinquished.
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1 In Tarver, the Supreme Court held that robbery is a “constituent offense”
of second-degree murder and thus the “same offense” under the double
jeopardy test set forth in Blockburger v. United States, 284 U.S. 299
(1932)). Tarver’s analysis was based on a strict elements approach rooted
in Blockburger, which, in turn, reflects principles similar to those adopted by
the General Assembly when enacting Section 9765. See Commonwealth v.
Baldwin, 985 A.2d 830, 837 n.6 (Pa. 2009); Commonwealth v. Wade, 33
A.3d 108, 120 (Pa. Super. 2011) (“Our merger statute merely codified the
adoption by the Tarver/[Commonwealth v. Anderson, 650 A.2d 20 (Pa.
1994)] decisions of the Blockburger test and upholds the long-standing
merger doctrine relative to greater and lesser-included offenses.”).
Thus, Tarver remains binding authority on this Court.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/19
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