Com. v. Wanamaker, L.
819 EDA 2016
| Pa. Super. Ct. | Feb 7, 2017Background
- On Sept. 11, 2010, Lamarr Wanamaker approached a group on Ruscomb Street, demanded money/drugs, produced a revolver, searched pockets, and then shot Neville Franks twice; Franks died.
- Wanamaker was charged (9/12/11) with second-degree murder, two counts of robbery (of Franks and Taylor), simple assault, carrying a firearm without a license, carrying a firearm on Philadelphia streets, and possessing an instrument of crime.
- On Jan. 25, 2013, a jury convicted Wanamaker of second-degree murder, two robberies, carrying a firearm without a license, and possessing an instrument of crime; he received life without parole for murder and concurrent terms for the other convictions.
- Wanamaker’s direct appeal was previously waived; he later filed a PCRA petition alleging ineffective assistance of direct appellate counsel for that waiver; the PCRA court reinstated his direct appeal rights nunc pro tunc.
- On reinstated appeal, Wanamaker argued his robbery conviction for robbing Franks merged with his second-degree murder conviction and thus could not be separately sentenced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether robbery of Franks merges with second-degree murder for sentencing | Commonwealth: robberies and murder were separate criminal acts (no merger) | Wanamaker: robbery of Franks was the predicate felony for the murder and must merge for sentencing | Court: Robbery of Franks merges with second-degree murder; that sentence vacated; remainder of sentence affirmed |
Key Cases Cited
- Rushing v. Commonwealth, 99 A.3d 416 (Pa. 2014) (recognizes predicate felony merges with second-degree murder)
- Adams v. Commonwealth, 39 A.3d 310 (Pa. Super. 2012) (discusses merger of predicate felony into second-degree murder)
- Gillespie v. Commonwealth, 516 A.2d 1180 (Pa. 1986) (historic precedent on felony-murder merger principles)
- Kimmel v. Commonwealth, 125 A.3d 1272 (Pa. Super. 2015) (standard of review for merger questions)
- Weatherill v. Commonwealth, 24 A.3d 435 (Pa. Super. 2011) (distinguishes kidnapping as non-merging predicate)
- Wolfe v. Commonwealth, 140 A.3d 651 (Pa. 2016) (legality of sentence cannot be waived)
- Pulanco v. Commonwealth, 954 A.2d 639 (Pa. Super. 2008) (reinstatement of direct appeal rights where counsel waives all issues)
- Raven v. Commonwealth, 97 A.3d 1244 (Pa. Super. 2014) (sets two-prong test for merger under § 9765)