Com. v. Drain, K.
1836 WDA 2014
Pa. Super. Ct.Nov 17, 2016Background
- In Commonwealth v. Drain, in 1999 Keith Lamont Drain shot Alonzo Thompkins, who survived but became a paraplegic; Thompkins died in 2009 from sepsis related to bedsores and infections from his paralysis.
- Drain was later charged (2009) with criminal homicide and firearms offenses; tried in 2014, convicted of third-degree murder and carrying a firearm without a license, and sentenced to 23½–47 years. He appealed raising speedy-trial/Rule 600, hearsay (excited utterance), gruesome photographs, sufficiency and weight of the evidence claims; the Superior Court affirmed, adopting the trial court opinion.
The Superior Court noted the felony-in-connection-with-murder exception to the two-year statute of limitations for the firearms charge under 42 Pa.C.S. § 5551(4).
- In Commonwealth v. Waliyyuddin, defendant was convicted (non-jury) of involuntary manslaughter and EWOC after a three-month-old infant died from abusive head trauma; initial sentence was vacated on appeal because of merger, remanded for resentencing.
- On remand the trial court sentenced Waliyyuddin to an aggregate five–ten years for involuntary manslaughter, above the guideline range; defendant argued the court improperly relied on victim age (a guideline consideration), imposed a manifestly excessive sentence, and relied improperly on arrest history.
- The trial court affirmed the new sentence, explaining the departure was based on the infant’s extreme vulnerability (a subclass not fully accounted for by the guideline category "under 12") and permissibly considered arrests (not convictions) as part of sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / Rule 600 / Due process (Drain) | Commonwealth: homicide could not be charged until victim died; non-homicide charges were addressed earlier; statute-of-limitations exception applies where felonies are tied to murder | Drain: late prosecution violated speedy trial and due process | Superior Court: no violation; homicide charge timely; firearms charge not barred by statute-of-limitations due to felony-in-connection-with-murder exception; affirmed |
| Hearsay—excited utterance (Drain) | Commonwealth introduced victim’s 1999 statements to police as excited utterance | Drain: statements were hearsay and did not qualify as excited utterance | Trial court opinion (adopted by Superior Court): admission non-erroneous; claim rejected |
| Photographs/gruesome evidence (Drain) | Commonwealth: photos were probative to show injuries and cause of death | Drain: photos unduly prejudicial, cumulative | Trial court opinion (adopted): admission proper; probative value outweighed any prejudice |
| Sentencing departure based on victim age (Waliyyuddin) | Commonwealth / trial court: infant’s very young age justified upward departure as a particularly vulnerable subclass | Waliyyuddin: age of victim is already accounted for in guidelines; can't be used to justify departure | Trial court: departure permissible—specific age within broader guideline category may justify above-guideline sentence; sentence affirmed |
Key Cases Cited
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (a sentencing court may rely on the victim's precise age to justify an above-guideline sentence)
- Commonwealth v. Russell, 938 A.2d 1082 (Pa. Super. 2007) (statute-of-limitations exception for non-homicide felonies alleged to be perpetrated in connection with a murder)
- Commonwealth v. Anderson, 552 A.2d 1064 (Pa. Super. 1988) (sentencing is reviewed for abuse of discretion)
- Commonwealth v. Bryant, 458 A.2d 1010 (Pa. Super. 1983) (a sentencing court may consider prior arrests where it recognizes the defendant was not convicted)
- Commonwealth v. Craft, 450 A.2d 1021 (Pa. Super. 1982) (same principle regarding consideration of arrests in sentencing)