J-S01024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TROY MERKE                                 :
                                               :
                                               :    No. 146 EDA 2019

               Appeal from the Order Entered November 6, 2012,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0004503-2011.


BEFORE:      BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY KUNSELMAN, J.:                               FILED APRIL 14, 2020

        Troy Merke appeals, nunc pro tunc, from a judgment of sentence

imposed after he was convicted in a bench trial of voluntary manslaughter and

possession of an instrument of crime.              Upon review, we affirm Merke’s

convictions, but we remand for resentencing.

        The trial court detailed the pertinent trial testimony presented by the

Commonwealth, as follows:

                  On December 25, 2010, at about 4:03 a.m.,
           Philadelphia Police Officer Rahsaan Price received a radio
           call directing him to go to 5849 Stockton Road in
           Philadelphia to investigate a call advising that there was a
           man with a gun and a hospital case involving a male who
           had been shot in the hand. The officer and his partner
           immediately drove to that residence and upon arrival
           Officer Price observed upon climbing the first of three flights
           of stairs, a male, later identified as Tyree Devon Young, the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       victim herein, [lying] on the sidewalk. He immediately
       radioed that the shooting was “founded” and that a rescue
       squad should be dispatched. He then encountered [Merke],
       who was exiting the property. [Merke] pointed in the
       direction of the victim and volunteered that he had shot him.

           Officer Price handcuffed [Merke] and asked him, inter
       alia, where was the gun. [Merke] directed the officer to the
       living room and once there, the officer saw a gun sitting on
       a pile of wrapped Christmas gifts behind a door. The officer
       made the gun “safe” and then placed it back where he found
       it.

          Officer Price thereafter checked for possible witnesses
       and additional victims. He encountered two people in a
       second floor bedroom who said that they had not witnessed
       the shooting but had heard an argument followed by
       gunshots.     In the officer’s opinion, the inside of the
       residence was “fine.”

         Officer Price also spoke to Latoya Merke, [Merke’s] sister,
       who was inside the residence at the time of the incident.
       Ms. Merke stated that [Merke] and [victim] were “arguing
       and scuffling” and that she heard gunshots.

                                     ***

              Ms. Merke testified that she resided at 5849 Stockton
       Road with her mother, two cousins, and [Merke] and that
       she had known the victim for a very long time and
       considered him to be her cousin. Ms. Merke added that she
       had gone out with the victim and [Merke] to a
       bar/restaurant called the Moonlight Museum and that they
       left the bar after the victim started a fight and was removed
       from the bar by security. Before going to the Moonlight
       [Merke] and the victim had gone to another bar called the
       Charlie B’s, according to Ms. Merke, and [Merke] called her
       and asked her to meet them at the house to go with them
       to the Moonlight. When they arrived, the victim was drunk.

             After leaving the Moonlight, Ms. Merke and the two
       men drove to 5849 Stockton Road. During the ride both
       men began to argue when the victim accused [Merke] of not
       “having his back” when they were in the Moonlight to which
       [Merke] responded that the victim was drunk and was

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       “really bugging”. When they arrived at the residence, both
       men began to argue outside the residence. Ms. Merke left
       them outside and went inside to the kitchen. In her opinion
       both men were intoxicated after leaving the Moonlight.

             Sometime later, while she was in the kitchen, she
       heard the victim and [Merke] come inside and then saw
       them wrestling in the living room. In her opinion they were
       not playing with one another, because they fell onto the
       floor over a table where they continued to wrestle. She
       heard both men say to the other one, “Let it go,” but both
       men wanted the other one to do so first.

             At some point she told them to stop. She then heard
       a single shot and as she was about to exit the kitchen she
       heard a second shot that caused her to go back inside the
       kitchen and hide. [Merke] then came inside and Ms. Merke
       called the police after [Merke] told her to do so because
       something was wrong with his hand.

             She added that she did not see anyone with a gun
       before the shots were fired and that the first time she saw
       a gun was after she heard the shots. It was on a living room
       table near the door where presents were piled. She said
       that she did not see who fired them after which she heard
       the door open. She told the police during an interview that
       she assumed that the gun belonged to [Merke,] because she
       had never seen the victim with a gun.

               At about 4:05 a.m., Philadelphia Police Officer Todd
       Landherr and his partner, Officer Charles Klink, went to
       5849 Stockton Road in Philadelphia after receiving a radio
       call. Upon arrival, Officer Landherr encountered [Merke],
       who was having an injury to his hand attended to. After
       noting that two other officers were already at the [scene],
       he observed the victim [], who was [lying] half on the
       sidewalk and half on the street. He further observed a blood
       trail from a pool of blood near the victim that went up two
       of the three flights of stairs that led to the front door of the
       property. On the second step of the second staircase, in
       addition to blood, the officer saw a fired shell casing. On
       the third set of steps, which led into the property there was
       more blood.



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Trial Court Opinion, 4/23/2019, at 2-4.

      The Commonwealth presented testimony through various police officers,

including a statement given by Merke following his arrest, and their processing

of the crime scene.     The Commonwealth also presented expert testimony

regarding the injuries sustained by the victim, and the cause and manner of

his death.

      Merke testified at trial. The trial court summarized his testimony as

follows:

               [Merke] testified in his own defense. He related, inter
           alia, that after he, the victim, and his sister left the
           Moonlight Bar, they went to [Merke’s] house where the
           victim began to argue with [Merke] about leaving the bar
           and whether or not he was drunk. [Merke] went inside his
           residence, after retrieving his gun from the glove box of the
           car where he put it before going into the bar. Once in the
           house, [Merke] placed the gun on a table and was about to
           call a woman whose telephone number he got at the bar
           when the victim opened the front door and began yelling at
           [Merke,] saying that he wanted to fight. The victim then
           “swung on” [Merke,] and the two men began wrestling.

               As they wrestled, [Merke] told the victim to go home
           because he was drunk. The victim then mentioned the gun
           and said he knew what to do with it. [Merke] immediately
           reached for the gun to prevent the victim from gaining
           control of it and when he did, the victim charged him and
           tried to wrestle the gun out of [Merke’s] hand. During the
           struggle, the gun fired.

                 After the gun went off [Merke] managed to get the
           victim off of him. He again told the victim to go home
           because he was drunk. The victim responded by yelling at
           [Merke] and then by charging at him. They again began
           wrestling over the gun, which fired a second time during the
           struggle. [The victim] then backed up and ran out of the
           front door. [Merke] followed him outside and saw that he

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           was [lying] at the bottom of the stairs and that he was
           bleeding. [Merke] then went back into the house and told
           his sister to call the police. He also informed her that
           something was wrong with his hand. [Merke] added that
           [the victim] had his coat on during the entire affray and that
           despite having had two drinks he was in control of his
           faculties.

                  [Merke] denied shooting the victim outside and said
           that the entire incident occurred inside the house. He also
           denied pulling the gun on the victim and stated that he
           reached for it only to keep the victim from gaining control
           of it. Finally, [Merke] denied delaying contacting the police
           to get his story straight.

Trial Court Opinion, 4/23/19, at 7-8.

        After a bench trial in September 2012, the court found Merke guilty of

voluntary    manslaughter       (unreasonable    belief),   and   possession   of   an

instrument of crime.1 On November 6, 2012, the trial court sentenced Merke

a statutory mandatory minimum sentence of five to ten years of imprisonment

for his involuntary manslaughter conviction, and a consecutive five-year

probationary term for his possession of an instrument of crime conviction.

Merke did not file a post-sentence motion or a direct appeal.

        On October 17, 2013, Merke filed a timely pro se PCRA petition, and the

PCRA court appointed counsel. On October 10, 2014, PCRA counsel filed an

amended petition in which Merke sought the reinstatement of his appellate

rights nunc pro tunc. By order entered December 11, 2018, the PCRA court


____________________________________________


1   18 Pa.C.S.A. §§ 2503(b) and 907(a), respectively.




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granted Merke’s “Motion to Reinstate Appellate Rights Nunc pro Tunc to

Superior Court.” PCRA Order, 12/11/18, at 1.2 This timely appeal followed.

Both Merke and the trial court have complied with Pa.R.A.P. 1925.

       Merke raises the following issue on appeal:

          I.     Is [Merke] entitled to an arrest of judgment on all
                 charges where he acted in self-defense and where the
                 Commonwealth failed to prove the necessary
                 elements of voluntary manslaughter?

Merke’s Brief at 3.3

       Merke’s issue relates to sufficiency of the evidence. A challenge to the

sufficiency of the evidence presents a pure question of law and, as such, our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017).                  When

analyzing whether the evidence was sufficient to support a conviction, this
____________________________________________


2 The certified record offers no explanation for the over five-year delay
between the filing of Merke’s pro se PCRA petition and the PCRA court’s grant
of nunc pro tunc relief. Our Supreme Court has made clear that “[t]he PCRA
court [has] the ability and responsibility to manage its docket and caseload
and thus has an essential role in ensuring the timely resolution of PCRA
matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 2012)
(citing Commonwealth v. Porter, 35 A.3d 4, 24-25 (Pa. 2012) (explaining,
“the court, not counsel, controls the scope, timing and pace of the proceedings
below”)).

3 Although Merke seeks an arrest of judgment on “all charges,” he presents
no argument with regard to his conviction for possession of an instrument of
crime. Thus, that sufficiency claim is waived. See Commonwealth v.
Wilson, 147 A.3d 7, 22 (Pa. Super. 2016)(explaining when an appellant offers
no citation to pertinent case law or other authority in support of an argument,
the claim is waived).



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Court must “view the evidence in the light most favorable to the

Commonwealth as the verdict winner in order to determine whether the jury

could have found every element of the crime beyond a reasonable doubt.”

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019).                        “The

Commonwealth may sustain its burden by means of wholly circumstantial

evidence, and we must evaluate the entire trial record and consider all

evidence received against the defendant.” Commonwealth v. Hopkins, 67

A.3d 817, 820 (Pa. Super. 2013). “The evidence established at trial need not

preclude every possibility of innocence and the fact-finder is free to believe

all, part, or none of the evidence presented.” Commonwealth v. Brown, 52

A.3d 320, 323 (Pa. Super. 2012). “Any doubts regarding a defendant’s guilt

may be resolved by the fact-finder unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be drawn from

the combined circumstances.” Commonwealth v. Vargas, 108 A.3d 858,

867 (Pa. Super. 2014) (en banc). Additionally, this Court cannot “re-weigh

the evidence and substitute our judgment for that of the fact-finder.” Id.

      The trial court found Merke guilty of unreasonable belief voluntary

manslaughter. Our Supreme Court has described this crime, and its interplay

with a claim of self-defense, as follows:

         [U]nreasonable belief voluntary manslaughter, sometimes
         loosely referred to as “imperfect self-defense,” . . . [occurs]
         where a defendant held an unreasonable rather than a
         reasonable belief that deadly force was required to save his
         or her life and all other principles of justification under 18
         Pa.C.S. § 505 have been met. Generally, the use of deadly
         force is not justifiable unless the actor believes that such

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        force is necessary to protect himself against death, serious
        bodily injury, kidnapping or sexual intercourse compelled by
        force or threat. 18 Pa.C.S. § 505(b)(2). Although a
        defendant has no burden to prove a claim of self-defense
        before such a defense is properly in issue, there must be
        some evidence, from whatever source, to justify such a
        finding. The evidentiary elements necessary to prevail on a
        justification defense are that the defendant (a) reasonably
        believed that he was in imminent danger of death or serious
        bodily injury and that it was necessary to use deadly force
        against the victim to prevent such harm; (b) was free from
        fault in provoking the difficulty which culminated in the
        slaying; and (c) did not violate any duty to retreat.

Commonwealth v. Sanchez, 82 A.3d 943, 980 (Pa. 2011) (citations

omitted).

     Here the trial court, who sat as fact-finder, concluded that the testimony

summarized above, established that Merke unreasonably believed that deadly

force was necessary:

           The evidence supported the unreasonable belief
        Voluntary Manslaughter conviction beyond a reasonable
        doubt because the evidence clearly established that
        [Merke’s] belief that he was in danger of death or serious
        bodily injury was clearly unreasonable. First, [Merke] left
        the gun out in plain view knowing that the victim was
        intoxicated. Then, as the two men argued, [Merke] reached
        for the gun thereby further exacerbating the situation and
        inciting a struggle for the gun. In addition, the evidence
        established that [Merke] was able to free himself from the
        victim’s grasp while in possession of the gun and then shot
        the victim more than once while situated some distance
        from the victim. Once [Merke] created some distance
        between himself and the victim he was no longer in danger
        and did not have to fire any more shots at [the victim], who
        was not armed and did not present a threat to cause death
        or serious bodily injury to [Merke].

           In addition to the foregoing, the evidence showed that
        the victim was shot in the left upper back and a spent shell

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           casing was recovered by authorities outside the residence
           thereby strongly suggesting that [Merke] shot the victim as
           he tried to flee. In view of the foregoing, it is respectfully
           suggested that the conviction is sustained under the theory
           of imperfect self-defense because it established that
           [Merke’s] belief that he was in danger of death or serious
           bodily injury was clearly unreasonable.

Trial Court Opinion, 4/23/19, at 10-11.

      Upon reviewing the record and employing the standard of review

summarized above, Thomas, supra, supports the trial court’s conclusions.

In his brief, Merke essentially argues that, based on his testimony, as well at

that from his sister, his use of deadly force was reasonable, and the

Commonwealth did not disprove his claim of self-defense. See Merke’s Brief

at 8-11.     In addition, Merke claims that the evidence presented by the

Commonwealth was so inherently unreliable and contradictory that any guilty

verdict thereon was based, improperly, on conjecture. Id.

      As noted above, the fact-finder is free to believe all, some, or none of

the testimony. Brown, supra. Moreover, the trial court specifically rejected

Merke’s assertion that it had to resort to conjecture to reach a guilty verdict.

First, the trial court correctly noted that a sufficiency claim “does not involve

reviewing the evidence from a convicted defendant’s perspective,” but rather,

in the light most favorable to the Commonwealth. Then the trial court found:

           the evidence presented by the Commonwealth in this case
           easily leads to the conclusion that the evidence was not so
           inconsistent and contradictory that one could conclude that
           the verdict finding [Merke] guilty of the charges set forth
           above rests on conjecture and surmise. As noted above,
           the evidence clearly showed that some of the bullet wounds
           were not inflicted at close range and may have been inflicted

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        as the victim tried to flee. Moreover, the facts established
        that [Merke] was not entitled to a complete defense of self-
        defense.

Trial Court Opinion, 4/23/19, at 12. We agree with the trial court that the

record refutes Merke’s characterization of the evidence presented by the

Commonwealth. Thus, we affirm his convictions.

     Next, although Merke does not challenge the legality of his sentence,

we note that we have long held:

        legality of a criminal sentence is non-waivable, and this
        Court may raise and review an illegal sentence sua sponte.
        Because the legality of a sentence presents a pure question
        of a law, our scope of review is plenary, and our standard of
        review is de novo. If no statutory authorization exists for a
        particular sentence, that sentence is illegal and must be
        vacated.

Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 889–90 (Pa. Super.

2019), appeal denied, 221 A.3d 644 (Pa. 2019).

     Here the trial court noted its belief that the mandatory five to ten year

sentence it imposed is illegal in that 42 Pa.C.S.A. section 9712 has been

declared unconstitutional. The court explained:

           Before concluding, this Court is constrained to suggest
        that the sentence of five to ten years’ incarceration imposed
        on the voluntary [manslaughter] conviction is illegal and
        must be vacated.       This Court applied the mandatory-
        minimum-sentencing statute found at 42 Pa.C.S. § 9712,
        which required the imposition of a mandatory-minimum
        sentence of five years following a conviction for certain
        enumerated crimes, including Voluntary Manslaughter,
        committed with a firearm. That provision was determined
        to be unconstitutional pursuant to the holding in Alleyne
        v. United States, 570 U.S. 99 (2013), in Commonwealth
        v. Valentine, 101 A.3d 801 (Pa.Super. 2014). [In Alleyne,

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         the United States Supreme Court held that any factor that
         triggers a mandatory minimum must be found by the fact-
         finder beyond a reasonable doubt.]

                Although [Merke] was sentenced a little more than
         eight months before Alleyne was handed down, it is this
         Court’s opinion that he is entitled to the application of
         Alleyne to his case, because he was granted the right to
         file a direct appeal, nunc pro tunc, which he timely filed, a
         violation of Alleyne implicates the legality of his sentence,
         see Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.
         Super. 2014) (en banc), and an issue alleging that a
         sentence is illegal cannot be waived and can be addressed
         sua sponte by a reviewing court even when the issue has
         not been preserved for review. Commonwealth v. Butler,
         173 A.3d 1212 (Pa. Super. 2017).

               [Merke’s] direct-appeal rights were reinstated by this
         Court, and he is now proceeding with a nunc pro tunc, direct
         appeal. This Court’s reinstatement of [Merke’s] direct-
         appeal rights was premised on a finding that he was denied
         the opportunity to pursue a direct appeal. Had his trial
         counsel filed a direct appeal on his behalf, his case would
         most likely have been pending on direct appeal when
         Alleyne was decided in June of 2013.

               Accordingly, for all of the foregoing reasons it is
         respectfully suggested that [Merke’s] sentence be vacated
         and the matter remanded for resentencing.

Id. (footnotes omitted). The Commonwealth agrees with the trial court and

adopts its logic.

      We accept the learned trial court’s reasoning and analysis. Indeed, we

agree our precedents, as previously mentioned, hold that Alleyne applies to

a mandatory-minimum sentence under 42 Pa.C.S.A. § 9712. See Valentine,

supra. Thus, we vacate Merke’s five to ten-year sentence for his voluntary

manslaughter conviction and remand for resentencing.




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      Convictions affirmed.   Case remanded for resentencing.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/20




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